Easements: what is “necessary” to obtain access to a property

The parameters of an easement, whether expressly granted or acquired by implied grant, or prescription, are defined by the following concepts:

• The physical extent of the easement, for example, the width of a right of way.
• The purpose and manner of use, for example, a right to take water but only for the use of a single private dwelling.
• Any limitations on the use, for example, a right of way that may only be used during daylight hours.
The recent case of Shaw v Grouby and another [2017] EWCA Civ 233 considered the above and in particular the question of what is “necessary” to obtain access to a property.
In this particular case, the property (Property) was one of three houses that had been built in the grounds of a manor house. Between the manor house and the public highway there was a long driveway. The driveway formed part of the manor house title.  The original transfer of the Property included a right of way over the driveway as follows:
“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 subject to the proviso that the Buyers shall contribute a fair and reasonable proportion of the cost of maintaining the same in a good and sufficient state of repair according to the extent of the user of the driveway by the Buyers.”
The plan attached to the transfer showed the whole of the driveway edged green.
Part of the boundary of the Property followed the route of the driveway. A wooden fence was erected along the boundary of the Property, alongside the driveway, with access to the Property from the driveway being gained through a gap in the fence (Access A). Subsequently, the owners of the Property (C) removed the fence and built a wall along the boundary. Access to the Property was gained through gates in the wall (Access B). The position of Access B was further along the driveway than Access A had been, such that Access B was further away from the highway and closer to the manor house.  The owners of the manor house (D) claimed that the right of way in the transfer limited the access point to Access A. C argued that the right of way granted access to every part of the Property that abutted the driveway, so that C was entitled to use Access B.
At first instance, the judge found that the right of way granted access to every part of the Property that abutted the driveway. D appealed, but the Court of Appeal upheld the first instance decision.  Whilst D argued that (a) the right of way was limited to what was physically necessary to obtain access to the Property at the date of the grant and (b) that in any event “necessary” should be construed as meaning the point of access that is shortest from the public highway, the court disagreed.  The Court of appeal found that:-
• It was common ground that the question of whether a right of way gives access to every part of the dominant tenement is one of construction of the relevant transfer (Pettey v Parsons [1914] 2 Ch 653).
• The plan attached to the transfer showed the whole of the driveway edged in green. The purpose of the green edging was to identify the maximum extent over which the right of way could be exercised. It was not, as D had argued, to facilitate identification of the driveway on the plan.
• What is necessary should not be construed by reference to a fixed point in time (that is, at the date of the grant). The interpretation of what is “necessary” could vary from time to time during the subsistence of the grant. This interpretation would permit the use of different points of access from the driveway to the Property.
• There was no justification for interpreting “necessary” as requiring C to use the shortest route possible to gain access. D was protected by the requirement that C contribute towards the cost of maintaining the right of way. If C used a longer right of way, C’s costs in maintaining the right of way would reflect that fact.
• If the intention had been to limit the right of way to a particular and fixed point of access, the transfer would have expressly stated that.
It is easy to see how parties might assume that, once a point of access has been created, the access will remain in the same position, but how properties are used can evolve over time.  As the court noted, if the intention is to limit the right of way to a particular and fixed point of access, this should be expressly stated in the grant.  The decision also provides helpful consideration of what is “necessary” when interpreting a right of way.
Most importantly the case highlights the need to take independent legal advice when considering property transactions.  Careful drafting of Transfers, in particular Transfers of Part, is key and so whether you are buying or selling land  and property, it is essential that you seek expert legal advice; our Legal 500 recognised Commercial Property Team are here to help.
To speak to one of the team, call on 0800 088 6004