Nicholas Kossodo Weaver v Deborah Smith
[2023] EWHC 1200 (Ch)
Gary David Harry Hambling & Anor v Garry Lawrence Wakerly & Anor
21 February 2023
[2023] EWHC 343 (Ch)
High Court
Two neighbours argued about a right of way. The agreement clearly stated the path could only be used to reach the field, not the cottage. The court agreed with the original ruling, saying the words meant exactly what they said, even though it might seem a bit inconvenient.
Key Facts
- •Appeal against HH Judge Walden-Smith's decision concerning the construction of an easement in a Land Registry Transfer dated 30 March 2001.
- •The easement grants a right of way over a track ('the Drive') between the appellants' (Hamblings') cottage and field.
- •Dispute centers on whether the easement allows the Hamblings to pass directly between their cottage and field.
- •The easement states: “All that Cottage… together with the right of way… over and along the access road… but subject to access over the road marked “Drive” only being used for access to the field not to Garden Cottage.”
- •The judge held the easement did not permit passage between the cottage and field.
- •The appeal challenges the judge's interpretation of the easement and the rejection of an 'ancillary use' argument.
Legal Principles
The extent of a right granted depends on the express terms of the grant, construed according to general rules of legal document interpretation.
Gale on Easements (21st Ed) paragraph 3.14
Construction of a grant must be objective, not based on subjective intentions, though surrounding circumstances may aid interpretation.
Gale on Easements (21st Ed.) paragraphs 3-14, 9-18 and 9-26
A grant of a right of way may authorize access to premises genuinely ancillary to the dominant tenement but does not extend the dominant tenement.
Gale on Easements
There is a presumption against a unidirectional right of way in the absence of clear wording.
Giles v Tarry [2012] EWCA Civ 837 at para 41
Outcomes
Appeal dismissed.
The court found the easement's wording clearly prohibits access between the cottage and field via the track. The phrase 'but subject to access… only being used for access to the field not to Garden Cottage' was interpreted as an absolute prohibition. The 'ancillary use' argument failed because it would contradict the express terms of the grant.
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