• In the case of Gore v Naheed 2017 EWCA Civ 369, it was found that an ancillary right of way can be successfully impliedly added to an express grant if it is ancillary to the use and enjoyment of the land.

Facts of the Case

  • The court in this case had to determine an appeal concerning the use of a driveway.
  • C owned a property called the Granary.
  • D owned the neighbouring land which was used to run a business.
  • The Granary had a right of access over the driveway of the neighbouring property for the purposes of loading and unloading by virtue of a 1921 conveyance.
  • C also sued the driveway to gain access to an adjacent garage which he also owned.
  • An issue arose when vehicles delivering goods to D’s premises frequently obstructed the driveway.
  • A judge decided that the rights contained under the 1921 conveyance included the right for C to pass over the driveway for the purposes of parking in the garage.
  • C was granted an injunction preventing the obstruction of vehicular access to the garage, but D was allowed to park in the driveway for up to 20 minutes fir the sole purpose of loading and unloading.
  • As a result of the past obstructions, the judge awarded C damages of £2,500 in addition to special damages of £4,584.54 in respect of lost rent caused by early termination of the tenancy of the Granary.
  • D was then ordered to pay C’s costs, but they appealed.

Issues in Gore v Naheed 2017 EWCA Civ 369

  • Ds appealed on the grounds that the time limit for parking should be two hours, the damages award is unreasonable and upon proper application of Harris v Flower & Sons 1905, the use of the driveway for the purposes of parking in the garage fell outside the scope of the easement in the grant.

Held by Court of Appeal

  • Appeal allowed in part.

Patten LJ

  • Held that the judge was correct to find that the use of the garage was ancillary to the use and enjoyment of the Granary.
  • No grounds held to interfere with the original judge’s assessment for a tolerated amount of parking.
  • The award of £2,500 could not stand due to C already being compensate for the loss of rent by the award of special damages.
  • “The judge’s order does, however, require to be amended so as to make it clear that the right to obtain direct access to the Garage for parking is limited to its ancillary use in connection with the occupation of the Granary and would not extend to a tenant of the Garage alone. This is not a matter of dispute between the parties and it is agreed that paragraph 1 of the judge’s order should be varied by adding at the end the words “in the garage in connection with the use and occupation of the Granary but not further or otherwise.” [43]
  • “…Given that no claim for general damages was either pleaded or advanced at the trial, I think that the award of £2,500 cannot stand. I would therefore allow the defendants’ appeal in respect of this part of the judge’s order.[47]