Easements and the ‘Rule in Harris v Flower’: Gore v Naheed & Ahmed [2017] EWCA Civ 369

In this article, Paul Butt looks at the recent decision in Gore v Naheed & Ahmed, and the additional guidance it provides to the Rule in Harris v Flower.

Introduction

All conveyancers are -or should be – aware of the Rule in Harris v Flower i.e. the rule of law that if you have an easement giving a right of way to access Plot A then you cannot use it to access Plot B – subject to an minor exception in relation to land used ancillary to Plot A. A recent Court of Appeal decision provides further guidance on this important rule of law.

The Case

The case involved a dispute over access to the rear of premises in Pangbourne, Berkshire. The property (known as The Granary) enjoys a right of way granted by a 1921 conveyance in the following terms:

“TOGETHER with the right for the Purchasers their respective heirs and assigns and others the owners and occupiers of the said granary ….. with or without horses or other animals carts or wagons laden or unladen to go and return along and over the private entrance road or way coloured yellow on the said plan for all purposes connected with the use and occupation of the said granary but not further or otherwise.”

The area coloured yellow on the plan includes an area on which a garage had been erected in 1994. The claimant when he purchased the Granary also purchased the Garage land so that since then the position on the ground has been that the driveway effectively ended with the Garage.

It was common ground between the parties that the easement granted by the 1921 conveyance entitled the claimant to drive a car or other vehicle to the front door of the Granary and to park the car there for the purposes of loading and unloading. What was in dispute was the right to use the driveway to obtain direct access to the Garage for the purposes of parking a car in it. It was claimed by the defendants that to use the driveway for the purpose of parking in the Garage was outside the scope of the easement granted under the 1921 conveyance due to the decision in Harris v Flower (1904) 74 LJ Ch 127.   The practical significance of this was at the heart of the dispute; the Judge had found as a fact that on numerous occasions access to the Garage had been obstructed by parking on the driveway. If there was no right to access the Garage, it was not unlawful for the defendants to have obstructed access to it , which was at the root of the dispute.

At the trial, Judge Harris made a declaration that the rights granted by the 1921 conveyance included the right for the claimant to pass over the driveway for the purpose of parking in the Garage and granted an injunction to prevent the obstruction of vehicular access to the Garage.

The Decision

Patton LJ (with whom Lewison LJ agreed) held that yes, Harris v Flower did prevent an easement being used to benefit a different piece of land UNLESS access to that land was for a use that was purely subsidiary or ancillary to that of the land that had the benefit of the right – and the Court of Appeal agreed with the Judge that was the case here.

To quote Patton LJ : I do not accept that parking within the Garage by a resident of the Granary should be treated as the use of the Garage in its own right for a purpose independent of the use of the dominant tenement. It would, of course, be different if the garage were let to or used by a third party separately from the occupation of the Granary.

Conclusion

The case includes a detailed evaluation of the decision in Harris v Flower and the cases interpreting it which is most useful for anyone involved in a dispute of this nature. But conveyancers must still remember the basic rule when assembling sites for development or otherwise.

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