FREE CHAPTER from ‘A Practical Guide to Easements, Restrictive Covenants and Rights of Way’ by Priya Gopal

05/07/2023

CHAPTER ONE – RIGHTS OF WAY AND OTHER COMMON EASEMENTS


Where there is some disagreement about whether there is in fact an easement, the starting point is to consider the right claimed against the requirements stated in Re Ellenborough Park [1956] Ch. 131. In that case, the court indicated that the essential qualities of an easement are as follows:

  1. There must be a dominant and servient tenement;

  2. The easement must accommodate the dominant tenement;

  3. The dominant and servient owners must be different persons; and

  4. The right claimed must be capable of forming the subject matter of a grant.

This Chapter deals primarily with requirements (2) and (4).

It should also be noted that an easement may be characterised as positive or negative. The former typically allows the dominant proprietor to carry out some act on the servient land (such as a right of way). The latter generally involves a right to receive and may restrict the servient owner’s ability to use the land (for instance a right to light).

Accommodating the dominant tenement

In Re Ellenborough Park, the Court of Appeal stated that “accommodate” required the easement to be connected with the enjoyment of the dominant tenement and for its benefit. More recently in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57, the court emphasised that “accommodate” is a question of fact and should be analysed by considering whether the easement served the normal use and enjoyment of the dominant tenement. The example provided by Lord Briggs is worth repeating. He stated:

“Thus for example, a right granted to the owners and occupiers of a house in Kennington to have free access to the Oval cricket ground on test match days might be annexed to the ownership of that house, and add significantly to its value. But it would have nothing to do with the normal use of the property as a home”.

The following considerations will be pertinent to the question of whether a purported easement accommodates the dominant tenement:

  1. The connection between the right claimed and use of the dominant tenement, based on the facts and circumstances of the individual case;

  2. Is the benefit to the land or purely to an individual? In most cases (and indeed this was recognised in Regency Villas), benefit to land may result in benefit to an individual. However, what the law of easements in this regard is seeking to guard against is a case where the right claimed is purely personal and therefore cannot be regarded as being of some practical importance to the dominant land;

  3. It is not sufficient that the right confers an advantage on the owner and/or renders ownership of the land more valuable (Re Ellenborough Park);

  4. Rights which involve some sort of commercial advantage to the servient land may be regarded as an easement. For example, in Moody v Steggles (1879) 12 Ch D 261, the proprietors of a public house claimed the right to affix a signboard to the wall of the Defendant’s house. After discussing the distinction between a right which related to the land and a right which related to the business of the occupant on the land, the court concluded that the right was capable of constituting an easement. In particular, it was said that the easement claimed was “more or less connected with the mode in which the occupant of the house uses it”. However, see Hill v Tupper (1863) 2 Hurl & C 121 for a contrasting decision where the right to put pleasure boats for hire on a canal was not regarded as an easement, predominantly because such a right was “unconnected with the use and enjoyment of [the] land”.


Capable of forming the subject matter of a grant

This chapter does not purport to delineate all the different forms of easements that are recognised under the law. Rather, the purpose of this chapter is to discuss the most frequently encountered easements and issues arising in practice. More generally, in Regency Villas, Lord Briggs stated that:

  1. The right must not be so extensive or invasive so as to oust the servient owner from the enjoyment/control of the servient tenement; and

  2. The grant of the easement should not impose upon the servient owner an obligation to carry out management or maintenance.


Right of Way

A right of way is typically framed so as to: (1) define the land over which the right of way exists; (2) prescribe the manner in which the right of way can be exercised, for instance, it could be by foot or through vehicles; (3) prescribe the frequency of use or identify times of day when the right of way can be used; or (4) identify the purpose for which the right of way can be exercised.

With these in mind, practitioners will generally find that disputes in respect of rights of way generally (although not exclusively) fall within the following categories:

  1. A dispute may arise as to whether the right of way extends to all or part of the land identified. In this regard, Patten J in Perlman v Rayden [2004] EWHC 2192 (Ch) stated that “it is a question of construction in every case whether a right of way gives access to each and every part of the dominant tenement or only to a particular point of access in it”. Where there is some obstruction which prevents use of the full right of way, it will be a question of construction as to whether the grant should be given a more restricted meaning. Accordingly, in Charles v Beach [1993] E.G. 124 (C.S.), Waite LJ clarified that: “The more transient or insubstantial the obstacle, the more ready the court will be to infer that it was the intention of the grantor to over-ride the obstruction, and (conversely) the more solid and permanent the obstruction, the greater will be the reluctance of the court to impute to the grantor any intention to give the dominant owner the right to insist upon its removal”;

  2. The dominant owner may seek to use the way in a manner contrary to that which has been prescribed. It may be that the grant expressly qualifies the manner in which the easement can be used e.g. limiting to use by foot only. Alternatively, the grant may be widely drafted. In such a case, it may be that the right of way is limited by the physical characteristics of the land e.g. prohibiting use by a lorry where the dimensions would not permit this. Thus, in Cannon v Villars (1878) 8 Ch. D. 415, the court stated that: “Prima facie the grant of a right of way is the grant of a right of way having regard to the nature of the road over which it is granted and the purpose for which it is intended to be used; and both those circumstances may be legitimately called in aid in determining whether it is a general right of way, or a right of way restricted to foot-passengers, or restricted to foot-passengers and horsemen or cattle, which is generally called a drift way, or a general right of way for carts, horses, carriages, and everything else”;

  3. There may be increased frequency or intensity of use. Excessive user is discussed in Chapter 3 and Extinguishment is discussed in Chapter 4. However, it is worth noting that not all increased use will be outside the scope of the easement granted. See, for example, British Railways Board v Glass [1965] Ch. 538 where the Court of Appeal concluded that the mere increase in the number of caravans using a site did not constitute a radical change in the character of the dominant tenement and so there was no excessive use;

  4. A dominant owner may seek to use the right of way for a purpose which is different to that defined by the wording of the easement or more extensive than the right acquired by prescription:

    1. Where the easement was granted by deed, the analysis is likely to begin with an interpretation question, namely whether the wording of the easement is sufficient to permit the use claimed. Alternatively, for prescriptive easements, the circumstances will be assessed by reference to the right acquired;

    2. The courts have generally been reluctant to permit increased use. Thus, in Cowling v Higginson (1838) 4 Meeson and Welsby 245, Lord Abinger stated that: “If a way has been used for several purposes, there may be a ground for inferring that there is a right of way for all purposes; but if the evidence shews a user for one purpose, or for particular purposes only, an inference of a general right would hardly be presumed”;

    3. Use that goes beyond that which was conferred or acquired is likely to be met with an argument of excessive user (for which, see Chapter 3);

  5. The grantee may seek to use the right of way to access land other than the dominant land:

    1. In Harris v Flower (1904) 74 LJ Ch 127, Romer LJ stated that: “If a right of way be granted for the enjoyment of close A, the grantee, because he owns or acquires close B, cannot use the way in substance for passing over close A to close B”. This rule is still a good starting point when considering whether a dominant owner is entitled to use the right of way to access land other than the dominant land;

    2. In some circumstances, it may be that the grantee will be permitted access to land where this is purely ancillary to the use of the dominant land: see National Trust v White [1987] 1 W.L.R. 907 and Gore v Naheed [2017] EWCA Civ 369.

    3. It will be important to consider the extent of any benefit to the non-dominant land. Where the use does not benefit the non-dominant land or only benefits the dominant land to an insubstantial extent, such use may be permitted: Macepark (Whittlebury) Ltd v Sargant [2003] EWHC 427.

As to repair and maintenance of a right of way, Longmore LJ summarised the relevant principles in Carter v Cole [2006] EWCA Civ 398:

“(1) A grantor of a right of way (“the servient owner”) is under no obligation to construct the way;

(2) The grantee may enter the grantor’s land for the purpose of making the grant of the right of way effective viz to construct a way which is suitable for the right granted to him (“the dominant owner”); see Newcomen v Coulson (1887) 5 ChD 133, 143 per Jessel MR;

(3) Once the way exists, the servient owner is under no obligation to maintain or repair it, see Pomfret v Ricroft (1669) 1 Wms. Saunders (1871 ed) 557 per Twysden J, Taylor v Whitehead (1781) 2 Doug KB 745 and Jones v Pritchard [1908] 1 Ch 630, 637, per Parker J;

(4) Similarly, the dominant owner has no obligation to maintain or repair the way, see Duncan v Louch (1845) 6 QB 904;

(5) The servient owner (who owns the land over which the way passes) can maintain and repair the way, if he chooses;

(6) The dominant owner (in whose interest it is that the way be kept in good repair) is entitled to maintain and repair the way and, if he wants the way to be kept in repair, must himself bear the cost: Taylor v Whitehead (1781) 2 Doug KB, per Lord Mansfield. He has a right to enter the servient owner’s land for the purpose but only to do necessary work in a reasonable manner, see Liford’s Case (1614) 11 Co Rep 46b, 52a (citing a case in the reign of Edward IV) and Jones v Pritchard [1908] 1 Ch 630, 638 per Parker J.”

Further, in the recent decision of Lamport v Jones [2023] EWHC 667 (Ch), Mellor J confirmed (citing Jones v Pritchard [1908] 1 Ch 630) that each party “may do such acts on the property of the other as are reasonably necessary to the continued enjoyment of the easement”.


Right to light

A right to light may be expressly granted, it may be implied or acquired through prescription – for which see Chapter 2. The core principles to bear in mind when dealing with a right to light case can be summarised as follows:

  1. A right to light cannot exist in respect of land that has no buildings erected, namely there must be some aperture through which the right to light can be enjoyed: Roberts v Macord (1832) 1 Moody and Robinson 230.

  2. For the purpose of section 3, PA 1832, a court is unlikely to accept that a right to light has been “actually enjoyed” in circumstances where panelling has been used to block the entrance of light into the building: Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd [2006] EWHC 3589 (Ch).

  3. There may be a requirement for expert evidence, which is likely to include what is known as a “Waldram” analysis. Such expert evidence has been regarded as “exceedingly useful” but not necessarily conclusive and potentially misleading: Fishenden v Higgs and Hill Ltd [1935] All ER Rep 435. More recently in Beaumont Business Centres Ltd v Florala Properties Ltd [2020] EWHC 550 (Ch), Peter Knox QC (sitting as Deputy Judge of the High Court) accepted that there had been criticisms of the “Waldram” analysis but stated that they should not be ignored and “have the advantage of giving one some measure of the loss of light”.

  4. Judges are likely to benefit from a site visit and this should be factored in when determining any directions and case management to trial.

Interference with rights to light is dealt with in Chapter 3.


Parking

It is now accepted that the right to park can constitute an easement, provided there is a dominant tenement to which the right is appurtenant: Moncrieff v Jamieson [2007] UKHL 42. Such a right may be provided for expressly, implied or acquired through prescription.

Where the right to park is granted expressly, disputes may fall within the following categories:

  1. What is the scope of the land over which the right to park can be exercised?

  2. Are there any limitations on how the right to park can be exercised? E.g. are there limitations on the number of cars or times of day when the right can be used?

  3. Is the right to park subject to any other qualifications?

  4. Is the right to park enjoyed jointly with others so that there is, in effect, a right to compete? For example, an easement could be framed as “an easement to park in common with all others entitled to do so on the rear service road”: Montrose Court Holdings Limited v Shamash and others [2006] EWCA Civ 251. The fact that there may be an insufficient number of car parking spaces to accommodate all of the potential users does not in itself make the easement too vague to constitute an easement: Campden Hill Gate Limited v Duchess of Bedford House RTM Company Limited & Ors [2022] EWHC 2489.

  5. Does the servient owner have the power to make regulations? What are the terms of these regulations?

  6. Is there a right to vary?

  7. Does the grant provide for the circumstances in which the right to park can be extinguished? (see, for example, Saeed v Plustrade Ltd [2002] 2 P. & C.R. 19)

It is sometimes argued that the right to park is ancillary to a right of access. However, it should not automatically be assumed that a right of way will always include a right to park. An important question in this regard is whether the right is “necessary for the comfortable use and enjoyment” of the dominant land: Moncrieff v Jamieson.

For general background on the approach of the courts prior to Moncrieff v Jamieson, see also: London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 W.L.R. 1278 and Batchelor v Marlow [2001] EWCA Civ 1051.


Other rights

  1. A right to support may be the subject matter of an easement. Such a right was described by Megarry J in Byard and Others v Co-operative Permanent Building Society Ltd (1970) 21 P. & C.R. 807 as “a right not to have the support removed without replacement”. Some key points to note in respect of rights to support are as follows:

    1. The support may come from land or other buildings: Lemaitre v Davis (1881) 19 Ch. D. 281.

    2. The right to support may be acquired through prescription so long as “the enjoyment is peaceable and without deception or concealment and so open that it must be known that some support is being enjoyed by the building”: Dalton v Angus (1881) 6 App. Cas. 740.

    3. Whilst a servient owner is not required to repair the part of the building providing support, he is not entitled to remove the support “without providing an equivalent”: Bond v Nottingham Corp [1940] Ch. 429. However, a servient owner may be considered to owe a duty of care to prevent danger to their neighbour’s land arising from a lack of support due to natural causes where “the owner or occupier knew, or was presumed to know, of the defect or condition on his land giving rise to the danger, even though he had not created it, and where it was reasonably foreseeable that the defect or condition would, if not remedied, cause damage to the neighbour’s land”: Holbeck Hall Hotel Ltd. and Another v Scarborough Borough Council [2000] 2 W.L.R. 1396.

    4. The cause of action crystallises when there is actual damage. Thus, in West Leigh Colliery Company Limited v Tunnicliffe & Hampson Limited [1908] A.C. 27, Lord Macnaghten stated that: “The damage, not the withdrawal of support, is the cause of action”.

  2. Whilst there is no general right to prevent a neighbour from building in a manner that would alter the flow of air (Chastey v. Ackland [1895] 2 Ch. 389), a right to air may exist where it is enjoyed through a “defined aperture or channel”: Hunter v Canary Wharf [1997] 2 W.L.R. 684.

  3. The right to privacy is not protected through easements but potentially through the law of nuisance more generally: see, for example, the recent Supreme Court decision in Fearn and others v Board of Trustees of the Tate Gallery [2023]
    UKSC 4    .

  4. In respect of recreation rights, see Regency Villas where the court recognised that the grant of purely recreational or sporting rights could be the subject matter of an easement where it genuinely accommodated the dominant tenement. This will generally be the case where “the actual or intended use of the dominant tenement is itself recreational”.

  5. In Clapman v Edwards [1938] 2 All ER 507, the court concluded that a right to advertise was not an easement, as there was no connection in respect of user between the dominant and servient tenements.

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