Expert Insights

Expert Insights

Rights of way - refusal of access


The judge was entitled to find that an easement granted over a driveway for the purposes of loading and unloading at a property also included the right to use the driveway to access an adjacent garage in order to leave a vehicle parked there for an indefinite period of time.


A right-of-way was granted by a conveyance dated 11 November 1921 allowing passage over a driveway for the purposes of loading and unloading.

The then owner of the dominant tenement, and the Claimant’s predecessor in title, subsequently acquired part of the driveway by adverse possession in 1994 and constructed a garage on that part.

The Defendant owners of the servient tenement 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 applied for an injunction preventing the Defendants from obstructing the driveway.

Key Issues

  1. Whether the use of the driveway by the Claimant for the purpose of parking in his garage fell outside the scope of the easement in the grant.
  2. The appropriate duration of any untolerated parking on the driveway by the Defendants.

First instance The judge found in favour of the Claimant.  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 the Defendants’ vehicles.  The judge also awarded general and special damages and costs.

The judge did however allow the Defendants 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.   

Decision on appeal

  1. The judge was entitled to find that the use of the garage was ancillary to the use and enjoyment of the Claimant’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 the Claimant’s property. 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. There was no room for any legal distinction to be drawn between passing through and passing alongside cases.
  2. 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.
  3. The damages award of £2,500 could not stand because the Claimant had not pleaded general damages.

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