Gore v Naheed & Anor

The scope of an expressly granted right of way is determined by construing the grant in its physical and factual context. No distinct legal rule governs access through, as opposed to alongside, the dominant tenement.

A right of way may permit direct access to adjoining land where that access is ancillary to the use and enjoyment of the dominant tenement. It cannot support an independent use of the adjoining land. Silence or refusal in response to proposed mediation is relevant to costs, but does not automatically justify a penalty.

The owner of the Granary enjoyed an express right of way over a shared driveway for all purposes connected with its use and occupation. He also owned adjoining land containing a garage. The defendants obstructed the driveway, principally preventing access to that garage.

HH Judge Harris QC declared that the right of way included access to the garage, granted an injunction, and awarded special and general damages. He also ordered the defendants to pay costs and interest. The defendants appealed against the recognition of garage access, the permitted loading period under the injunction, general damages, and the costs and interest orders.

The principal issue was whether the express grant permitted direct access to adjoining land for parking ancillary to occupation of the dominant tenement.

1. The appeal was allowed only against the award of general damages and otherwise dismissed. The declaration was varied by agreement to make clear that garage parking had to be connected with the use and occupation of the Granary.

2. The scope of an express right of way is a question of construction. The court must consider the grant's language, the physical layout, and all material circumstances. There is no legal distinction between cases in which access passes through the dominant tenement and those in which it passes alongside it. The physical differences are relevant facts, not separate rules of law.

3. A right of way may accommodate a dominant tenement even where it gives direct access to adjoining or intervening land. The access must operate for the better enjoyment of the dominant tenement. Here, residential parking in the garage was ancillary to the use and enjoyment of the Granary and fell within the broad words of the grant. Separate letting or use of the garage by a third party would fall outside that ancillary purpose.

4. The 20-minute safe harbour for loading and unloading was upheld. The injunction prohibited obstruction generally and merely specified conduct that would not constitute obstruction. In the absence of evidence that the judge's assessment was unworkable or unsupported, appellate interference was unwarranted.

5. The £2,500 award of general damages was set aside. No such claim had been pleaded or advanced at trial. The property was tenanted during the relevant period, so the owner suffered no personal inconvenience, while the proved rental loss was already compensated by special damages.

6. A failure to engage with proposed alternative dispute resolution is a factor in the costs discretion, not an automatic ground for a penalty. The trial judge considered the refusal to mediate and permissibly found it reasonable because the dispute raised complex legal questions and mediation appeared unlikely to succeed.

7. Interest on costs was properly available under section 74 of the County Courts Act 1984 and the jurisdiction then contained in rule 44.2(6)(g) of the Civil Procedure Rules 1998. The order's reference to rule 36.17(4) was an error and did not invalidate the award.

Lewison and Underhill LJJ agreed with Patten LJ.

1. Court of Appeal (Civil Division): Allowed the appeal against general damages, varied the declaration by agreement, and otherwise dismissed the appeals: [2017] EWCA Civ 369.
2. Oxford Combined Court Centre: HH Judge Harris QC declared that the right of way included access to the garage, granted an injunction, awarded special and general damages, and ordered the defendants to pay costs and interest.