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Access – the rights and wrongs

30 Jan 2019

The Court of Appeal decision in Gore v Naheed and Another [2017] EWCA Civ 369 provided a helpful reminder that, generally, a right granted in favour of one parcel of land will not benefit another parcel of land, even if both pieces are owned by the same person. 

 

The facts

Mr Gore owned a property known as The Granary.  The Granary was accessed via a driveway.  The right over the driveway in favour of The Granary was as follows "the right 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 included an area on which a garage had been built in 1994. When Mr Gore purchased The Granary, he also purchased the garage land.  There was not an express right of way to the garage land over the driveway. 

The Naheeds owned a shop which backed onto the driveway.  When deliveries were made to the shop, the delivery vehicle would park and unload on the driveway.   As the driveway was narrow, Mr Gore could not access his garage at these times. 

Mr Gore therefore claimed against the Naheeds for obstructing his right of way.  The Naheeds said that the right of way did not benefit the garage land and that it only benefitted The Granary.

The decision

The Court of Appeal decided that, in this case, as the garage was used in conjunction with The Granary, the right of way also extended to the garage.  The Court said that if the garage was used independently of the Granary (for example, if the garage was let to a third party, or was sold off), then the garage would no longer have a right of way over the driveway.

The point

The decision in this case isn’t new law, but it is a helpful reminder that the extent of an express right over land will always depend on the facts.  As a result it is very dangerous to rely on a right, unless it very clearly sets out that it benefits the additional land.  In the majority of cases insurance will be advisable.  For more information about indemnity insurance, see our recent article here.

 

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