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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?


Introduction

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

Facts

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.

Held

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.


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