128: What is necessary to gain access to a property over a shared driveway?

An easement is a right benefiting a piece of land (known as the ‘dominant tenement’) that is enjoyed over land owned by someone else (the ‘servient tenement’). A recent Court of Appeal case considered the extent of a right of way giving access to a newly built house across land owned by a manor house and what was ‘necessary’ to gain access to the property.

Facts

The property in question was one of three houses that had been built in the grounds of a manor house. Access was gained to the property over a long driveway which ran between the manor house and the public highway.

The transfer of the property included the following right of way over the driveway:

‘To pass and repass at all times and for all purposes over and along so much of the private driveway edged green on the said plan as is necessary to obtain access to the property’.

When the property had been built within the manor house grounds, a wooden fence had been erected along the boundary of the property which ran alongside the route of the driveway. Access to the property was originally gained via a gap in the fence (point A).

The owner of the property had then removed the fence and built a wall along the boundary so that access to the property was now gained through gates in the wall (point B). Point B was further along the driveway, closer to the manor house and further away from the public highway than point A had been.

The owner of the manor house claimed that the right of way in the transfer limited the access point to point A where the original gap in the fence had been. The owner of the property disagreed and believed that the right of way given in the original transfer granted access to every part of the property that abutted the driveway.

Decision

At first instance and on appeal, the judge found that the right of way granted access to every part of the property that abutted the driveway.

The Court of Appeal found that the question of whether a right of way gives access to every part of the ‘dominant tenement’ is one of construction of the wording in the transfer. As the plan attached to the transfer showed the whole of the driveway edged in green it showed the maximum extent over which the right of way could be exercised. It was not only to facilitate identification of the driveway on the plan but allowed access along the whole route of the driveway.

The judge also decided that what is ‘necessary’ in relation to a right of way should not be construed by reference to a fixed point in time ie at the time of original transfer only. The interpretation of what is ‘necessary’ could vary from time to time during the subsistence of the grant.

This allowed the use of different points of access from the driveway to the property. If the intention had been to limit the right of way to a particular and fixed point of access, the transfer should have expressly stated that.