|
Right of way - use by other land? |
|
|
The starting point is that ‘if a right of way be granted for the enjoyment
of Land A, the grantee, because he owns or acquires Land B, cannot use
the way in substance for passing over Land A to Land B’ (Harris [1904]).
But, the key words here are ‘in substance’. It is possible that a right of
way can be used to gain access to the non-dominant land in appropriate
circumstances (if it is ‘ancillary use’). But, such exceptions are rare. For
instance, in Peacock [2001], a farmer owned Blue land and Red land,
with a right of way over neighbouring land to get to the Red land. Could
he use the right of way in order to pass over the Red land to get to his
Blue land (so he could cultivate it)? The CA decided that the cultivation
of the Blue land was not ‘ancillary’ to the cultivation of the Red land, and
so the right of way could not be used. Thus, the case shows that there
has to be a real benefit to the dominant land.
Needless to say, it is a complex area and for the full authority see article
in [2005] NLJ 1402.
|
|
November 2005 |
