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Right of way - not for adjoining land |
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Suppose a landowner has a plot of land that has the benefit of a right of
way. He then acquires an adjoining plot. Can he use the right of way to
access that new plot? The answer, of course, is ‘no’:
‘If a right of way be granted for the enjoyment of close A, the grantee, because he
owns or acquires close B, cannot use the way in substance for passing over close A to close B’. (Harris [1905]).
That simple test has been qualified to an extent, in that the courts have
allowed a couple of exceptions when the use of the right of way is
ancillary to the main (dominant) land, and is not, in substance,
benefiting the new land. For instance, in National Trust [1987] a right of
way could be used to access a new car park area. Thus, a right of way
cannot be used to access adjoining land unless use of the right of way
is merely ancillary to the use of the dominant land, and does not in
substance benefit the adjoining land. [2006] EG 16 December 79.
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January 2007 |
