Extent of grant

This page deals with the extent of the land benefitting from the grant? For example, if the servient owner has granted a right of way over his land to a particular field, can the dominant owner use the track to go to an adjacent field?


The starting point is what is often known as the principle in Harris v Flower (1904) 74 LJ Ch 127:

    If a right of way is granted for the benefit of one piece of land (land A), if the owner of that land acquires other land (land B) he cannot use the right of way for passing over land A to access land B.

It was restated clearly most recently in Peacock v Custins [2002] 1 WLR 1815, CA - see further below. However, the right of way can be used for purposes which are ancillary and incidental to the right granted: Nationwide Building Society v James Beauchamp [2001] EWCA Civ 275 Peter Gibson LJ:

    "The grant of a right of way is to be taken to carry with it such ancillary and incidental rights as are necessary to make the grant fully effective. This is so whether the right of way is obtained by prescription or by express grant. The law presumes this to have been the intention of the parties. The extent of the ancillary right must be determined in the light of the particular circumstances of the right of way. In the present case, what seems to me determinative is that the parties themselves have specified to what standard the road should be constructed. Indeed, it is implicitly referred to in the grant of right of way itself."

Various cases

National Trust v White

[1987] 1 WLR 907


NT had a right of way over a track to one of its properties. It subsequently built a car park on land close to the property so that visitors could park and then walk up to the property. This led to an increase in traffic on the track.


Using the track to get to the car park, and then onto the NT property, was ancillary to use of the NT property. Had the car park been used by persons other than visitors to the property it would not have been a legitimate use of the right of way.

Peacock v Custins

[2002] 1 WLR 1815, CA.


The dominant land was a farmer's field. It had the benefit of a right of way "at all times and for all purposes in connection with the use and enjoyment of the property hereby conveyed" (the field). The farmer also owned an adjacent field and the farmed the two fields as a single unit. The farmer used the track to get to both fields. He took his tractor over the rights of way about six times per year, which was only once or twice more than if he had not owned the adjacent field.


The farmer was not entitled to use the right of way to access the adjacent field. Das v Linden Mews Ltd [2002] EWCA Civ 590


Owners of mews properties used the carriageway that went past their houses to get to and park on a piece of land that was originally a garden. The owner of the carriageway agreed that there was an easement of way over the carriageway to the mews houses but argued that the extension of that right of way to get to the garden area for parking extended the dominant tenement and fell foul of the rule in Harris v Flower (1904).


The CA agreed. However, the court remitted the case to the county court to consider whether or not to grant damages in lieu of an injunction, commenting that their decision was based on the finding that the trespass was based on the finding that there was an extension of the dominant tenement – not that there was an excessive user. (Query: Was the case correctly decided? Surely the use of the old garden to park the cars was ancillary to the use of the right of the way to get to the houses? – National Trust v White was cited but distinguished). Massey v Boulden [2002] EWCA Civ 1634


Owners of dominant land had a prescriptive right of way over a track to their house. An extension to the house was built a long time ago but there was not quite 20 years since the building of the extension (it was two months short). The servient owner argued that it was not permitted to use the right of way to get to the extension! (In the CA Simon Brown LJ said: "It is difficult to conceive of a more unmeritorious claim to restrict the present use of a right of way or a less promising basis on which to seek relief by way of injunction or even damages").


The use of the extension was ancillary to the use of the house.


There is obviously some difficulty in reconciling these cases. At the end of the day they are decided on their own individual facts.

Trying it on

Giles v Tarry

[2012] EWCA Civ 837


The owners of a farm conveyed the land in parts. The farmhouse and outbuildings were conveyed to ST’s predecessor in title. The other part of the farm, which included a paddock, was conveyed to DT (the Paddock). DT also was granted a right of way over a driveway on ST’s property.

The paddock was adjoined by a much larger field (the Green Land). The Green Land was rented by DT. There was no physical division between the Paddock and the Green and the Paddock and the Green Land formed a single agricultural unit.

Court proceedings were taken between the parties, which resulted in a compromise under which DT undertook not to exercise the right of way over the driveway for the purpose of gaining access to the rented Green Land. DT wanted to be able to graze his sheep on the Green Land, as well as in the Paddock, but the compromise did not allow him to use his right of way into the Paddock for the purpose of then taking his sheep onto the Green Land.

In order to try to get round this, DT drove his sheep into the Paddock and then out through a gate on the north side of the Paddock and onto a highway. After brief pause, he then drove his sheep back into the Paddock and then onto the Green Land. ST objected.

First instance

DT argued that this movement onto the Green Land was not via his right of way. The judge held that it was lawful for DT to do this, as he was not putting the sheep onto the Green Land via the right of way over ST’s land. ST appealed.


The Court of Appeal found for ST and held that the judge had been incorrect to focus on actual movement rather than the ultimate intention of the user. The movement of the sheep constituted a continuous operation, the object of which was to enable the sheep to graze on the Green Land via the right of way. The use of the highway as a transient stopover was a “colourable” use of the highway. The whole sequence was an artificial device which was not permitted by the right of way.

Subsequently acquired land


Gore v Naheed

[2017] EWCA Civ 369


An easement granted over a driveway also included the right to use the driveway to access a subsequently acquired adjacent garage in order to leave a vehicle parked there for an indefinite period of time. Facts A right of way was granted by a conveyance in 1921 to a property known as “the Granary” allowing passage over a driveway in the following terms:

    “…to go and return along and over the private entrance road or way coloured yellow on the said plan for all purposes connected with the use and occupation of the said granary but not further or otherwise."

The then owner of the Granary (the claimant’s predecessor in title) subsequently acquired part of the driveway by adverse possession and constructed a garage on that part. The defendant owners of the servient tenement (D) ran a business from their property and regularly parked delivery vehicles on that part of the driveway owned by them, blocking access to the garage. The claimant (C) applied for an injunction preventing D from obstructing the driveway.

Main issues

  • Whether the use of the driveway by C for the purpose of parking in his garage fell outside the scope of the easement in the grant;
  • The appropriate duration of any untolerated parking on the driveway by D.

First instance

The Court found for C. The rights granted in the conveyance were deemed to include the right to pass over the driveway for the purpose of parking in the garage. An injunction was therefore granted to prevent the obstruction of access to the garage by D’s vehicles. The judge also awarded general and special damages and costs. The judge did allow D to use their part of the driveway for up to 20 minutes for the purpose of loading/unloading as he considered that such limited use would be insufficient to constitute an obstruction. D appealed.

Decision on appeal

The Court of Appeal dismissed the appeals except in respect of the award of general damages. The judge had been entitled to find that the use of the garage was ancillary to the use and enjoyment of C’s property. Parking within the garage by a resident of that property should not be treated as the use of the garage in its own right for a purpose independent of the use of the dominant tenement. The judge was also correct to hold that that ancillary use fell within the scope of the grant. The terms of the grant were wide enough to include direct access to the garage for parking in connection with the residential use of C’s property. Patten LJ said that D’s counsel had submitted,

    “… that there is a legal distinction to be made between passing through cases and what he refers to as "passing alongside" cases such as [Das v Linden Mews [2003] 2 P & CR 4]. He says that the construction of the grant to include access to adjacent parcels of land whose use is ancillary to that of the dominant tenement should be confined to passing through cases. The difficulty about this approach is that it runs contrary to the decision of Warner J in National Trust v White [[1987] 1 WLR 907] which was a passing alongside case in which the judge relied on the observations about ancillary use made in Harris v Flower [74 L.J.(Ch.) 127]”.

The Court held that there was no room for any legal distinction to be drawn between “passing through” and “passing alongside cases”. In all cases, the court was required to construe the language of the grant having regard to the layout of the location to which it related and all other material facts and circumstances.

As neither side had previously suggested the 20 minute period for untolerated parking was unsuitable and as there was no dispute as to the evidence on which this part of the decision was made, there were no grounds to interfere with the first instance assessment of the duration of a permitted interruption. However, the general damages award could not stand because no claim for these was pleaded or advanced at trial.


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