A recent case in the Court of Appeal, Gore v Naheed and Another [2017] EWCA Civ 369, has provided a helpful update on the extent to which a right of way in favour of one property could be used to gain access to adjoining land for parking ancillary to the use of the benefitting property. The case has not decided any new principles regarding easements, but has highlighted the extent to which a right may be used to benefit land which would not expressly benefit under the grant.
The key points to take away are:
1. Generally, an easement can only be used for the benefit of the dominant land. Incidental benefits may arise but it is heavily fact-specific.
2. Indemnity insurance may be the easiest (cheapest) option for ancillary uses where there is no dispute with the owner of the burdened land.
3. If you are negotiating an easement take care!
The Court of Appeal upheld the High Court’s decision that the right of way could be used in order to gain access to the garage for parking as ancillary to the use and occupation of The Granary. The Court did not accept the argument 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 land. This ancillary use fell, on the facts, within the scope of the original grant.
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