Interpretation of the scope of a right of way

The following article is produced with kind persmission of Mace and Jones solicitors.
Interpretation of the scope of a right of way
Published: 28th July 2010
Davill v Pull and another [2009] EWCA Civ 1309
Summary
For an easement (e.g. a right of way) to exist, there must be both "dominant" land and "servient" land. The dominant land is the land which benefits from the right of way and the servient land is the land over which the right is exercised.
Here, a right of way had been granted "for all reasonable and usual purposes". The dominant land had been described in the original conveyance as a "garden" but the Court of Appeal held that there was nothing to prevent the right of way being used for purposes other than use of the dominant land as a garden. The upshot of that was that the developer was able to use the right of way in order to develop the property.
Facts
The Claimant developer owned three properties, each consisting of a cottage with a garden to the rear. The properties had the benefit of a right of way over an accessway "for all reasonable and usual purposes . . . to give access to and from the [properties]".
The Claimant applied for and obtained planning consent to build a new house on each of the three properties. The new houses were to be built on the parts of the properties which had been described as "garden land" in previous conveyances.
Owners of the properties adjoining the Claimant’s land objected to the use of the accessway for construction work and also claimed that, because of the express wording of the right of way, the accessway could not be used by the owners of the new houses. (The adjoining owners had similar rights of way over the accessway.)
Decision
The Claimant was unsuccessful at the County Court but the decision of the County Court was overturned by the Court of Appeal. The Court of Appeal said that there was nothing in the factual context or background of this situation which showed that the original parties to the conveyances which granted the right of way intended that the right of way could only be used to access the dominant land in connection with its use as garden land.
The wording of the right of way allowed reasonable and usual purposes and the Court said that the use of a plot for the building and eventual occupation of a house was a reasonable and usual use and therefore the right of way could be used for those purposes by the Claimant and anyone to whom the Claimant sold the new houses.
Accordingly, a person who grants a right of way must expressly link the use of the easement to a particular use of the dominant land in order to limit the scope of the easement in this way. It may also be sensible to impose restrictive covenants on the dominant land in order to prohibit new building taking place or other "nuisance" uses, etc.
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