• It is clearly established in the rule in Harris v Flower (1904) 74 LJ CH 127 that a right of way which has been granted to access a particular plot of land cannot be used to access other neighbouring or adjoining land. However, recent case law is developing the doctrine of ancillary use, which may enable neighbouring or adjoining land to benefit from the right of way.

    A right of way granted to access Property No. 1 cannot be used to access Property No. 2. However, the doctrine of ancillary use is being developed to allow in certain circumstances a right of way to access adjoining land, even though this land was not part of the original plot which benefited from the right of way.

    The recent Court of Appeal case of Gore v Naheed [2017] EWCA Civ 369 considered this doctrine of ancillary use. In this case, the Court allowed the right of way which had been granted in essence to Property No. 1 to be used to access the garage land, which had been acquired subsequently to Property No. 1. The right of way could still not be used to access Property No. 2.

    What is key to the reliance on this doctrine of ancillary use is:

    • the actual wording of the original deed of grant of the right of way, and whether it can be said that the person who granted the right of way consented to the use of the right which is now being sought; and
    • the physical layout of the respective plots of land, so that the right of way can accommodate the additional use, and not exceed the use for which the right of way was originally granted for.

    Whilst these factors may involve difficult evaluative judgements to be made, nevertheless, the doctrine of ancillary use may provide some relief to the harshness of the application of the century old rule established by the Harris v Flower case.

    The case may, therefore, offer some guidance to landowners, but it is unlikely to provide absolute clarity, in understanding the extent of rights of way that benefit, or burden, their land.

    Allis Beasley is a Partner in the Dispute Resolution team at Brachers. Please contact the team to discuss any issues raised in this article on 01622 690691 or Allis on allisbeasley@brachers.co.uk.

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