Das & Ors v Linden Mews Ltd.

A right of way benefits only the dominant tenement. It cannot be used in substance to obtain access to, or provide parking on, separate land, even where that use would be convenient or beneficial to the enjoyment of the dominant property. The limited allowance for incidental steps beyond the dominant land does not create a general entitlement to use an easement for activities said to be ancillary to that enjoyment.

Whether damages should be awarded instead of an injunction is a discretionary remedial question. The legal classification of the wrong is not conclusive. The court must assess the practical effect of each remedy, including delay, rather than treating the imposition of a perpetual right on the servient owner as automatically decisive.

The appellants owned properties numbered 4 and 5 in a mews. Their properties had an agreed vehicular and pedestrian easement over the respondent company’s carriageway to and from the highway. The appellants wished to use the carriageway to reach separate garden land behind their properties, where they parked cars.

Judge Cooke in the Central London County Court held that the easement did not permit that use. He granted declarations and injunctions restraining access to the garden land over the carriageway. The appellants appealed both the ruling on the scope of the easement and the refusal to award damages in lieu of an injunction under Lord Cairns' Act.

The central issues were whether parking on the separate garden land was a permissible ancillary use of the right of way and whether the remedy should be reconsidered.

Appeal allowed in part. Buxton LJ gave the leading judgment. Moses J agreed. Thorpe LJ agreed, although he had initially found the appellants’ submissions on the easement persuasive.

1. The court upheld the County Court’s conclusion that the appellants had no right to pass and repass over the carriageway to obtain access to the garden land. The rule in Harris v Flower (1904) 74 LJ Ch 127 is an application of the broader principle that a way may be used only for the purposes of the dominant tenement. It may not be used to gain access to other land or thereby enlarge the dominant tenement.

2. The asserted use was directed to parking on garden land which was a separate tenement, rather than to access to the dominant properties. It therefore created a separate use of the way. The limited references in the authorities to adjuncts or incidental further steps after access to the dominant land had been achieved did not establish a general rule that an easement could serve any use ancillary to the owner’s beneficial enjoyment of that land.

3. National Trust v White [1987] 1 WLR 907 did not assist the appellants. There, the car park formed part and parcel of access along the way to the dominant land. It did not support direct use of a way to reach a separate parking area. The court accordingly affirmed the declaration that access to the garden land was outside the easement.

4. The remedy appeal succeeded. The legal categorisation of the claim as trespass rather than breach of covenant was not dispositive. The judge had to reconsider, in the light of Jaggard v Sawyer [1995] 1 WLR 269, the respective effects of damages and an injunction. Delay was relevant to that discretion even though it did not amount to a complete equitable bar requiring dishonesty or unconscionability.

5. The questions whether damages should be awarded in lieu of the injunction, and their amount if so, were remitted to Judge Cooke. The formal order limited further evidence to a single joint expert.

• Court of Appeal (Civil Division) — By [2002] EWCA Civ 590, the court affirmed that the easement did not extend to access to the separate garden land, but remitted the remedy issue for reconsideration.
• Central London County Court — Judge Cooke held that the appellants had no right to use the carriageway to access the garden land and granted injunctions restraining that use.