Extending a right of way

Posted on December 06, 2017

Can a right of way granted for access to a piece of land, be used for access to another piece of land?

The simple answer to this question has for many years been, ‘no’. But in a recent case, this rule has been relaxed in certain circumstances.

In Gore v Naheed, the owner of a house called the Granary had the benefit of a right of way over a yard and accessway to the public highway. The owner of the Granary then acquired land immediately beside the Granary and built a garage on it. He used the yard and accessway to reach the garage which otherwise had no access.

The garage was, in fact, built on what was part of the access to the Granary so the right of way now stopped at the garage.

The question for the court was whether the owner of the Granary could rely on the right of way to reach the garage and then park his car or was this beyond the scope of the right of way benefiting the Granary?

On the face of it, this was an extension of the right of way and so could not be relied on.

However, the court ruled that access to the garage operated for the benefit of the Granary and was, therefore, ancillary to the use of the house so that the right of way could be used for access to the garage. The court made it clear, however, that the result would have been different if the use of the right of way was for the benefit of the garage itself and if the garage were let to, or used by, a third party separately from the occupation of the Granary. 

We consider that the court took a practical approach to the particular circumstances in this case and the court’s decision cannot be relied on every time.

In each particular case, you should seek professional advice on the facts.

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