Das v Linden Mews Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton |
| Judgment Date | 01 May 2002 |
| Neutral Citation | [2002] EWCA Civ 590 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: 2001/1030 |
| Date | 01 May 2002 |
[2002] EWCA Civ 590
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON
COUNTY COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Buxton and
Mr Justice Moses
Case No: 2001/1030
Mr Kim Lewison QC and Miss Sheila Foley (instructed by Burges Salmon for the Appellants)
Mr Edward Denehan (instructed by Freeman Box for the Respondent)
Introduction
Linden Mews is a small mews, containing only seven properties, in West London. At the further end of the mews, facing each other over what I will call the carriageway, are numbers 4 and 5. At the end of the mews, at right-angles to the carriageway and abutting on to numbers 4 and 5, is a substantial wall. Behind that wall is an area of garden ground. That ground has been used for the parking of cars since about 1988, at which time the whole of it was owned by the owner of number 4, though held as a separate tenement from number 4 itself. In 1998 the garden ground was divided between the owners of numbers 4 and 5, both of whom use it for the parking of cars. To facilitate access for vehicles, substantial gates have been opened in the wall by the owners of numbers 4 and 5.
For a long period the residents in the mews were uncertain as to who owned the carriageway. However, two of them succeeded in tracking down the owner, and formed the defendant company [LM Ltd] to purchase and hold the freehold of the carriageway. LM Ltd then required the payment by the various owners of substantial sums in order to park on the carriageway. The owners resisted those claims, claiming easements of way along the mews and easements to park their vehicles immediately adjacent to their respective properties. When that claim came on for trial at the Central London County Court all the frontagers apart from the owner of No 1 agreed, on the first day of the trial, to enter into lease agreements for spaces in front of their houses. The only contest was on the part of the owner of No 1, whom the judge held to have established a prescriptive right to park by his property, though with it left unresolved at that stage over what exact area of the carriageway that right extended.
However, LM Ltd additionally counterclaimed against the owners of numbers 4 and 5, claiming declarations that the owners of numbers 4 and 5 did not have a right to pass over the carriageway by foot or with vehicles for the purpose of gaining access to the garden ground, and injunctions to prevent their doing so.
The judge held that the owners of numbers 4 and 5 had no such right, and granted the injunctions sought. The owners appeal against that finding; and contend that in any event the judge should not have granted injunctions, but only have made an award of damages under Lord Cairns' Act. There are no significant differences between the case of number 4 and the case of number 5, and I shall deal only with number 4, using the latter expression to refer to the premises of number 4, excluding the garden ground; and referring to the owner of number 4 for the time being as "the owner".
The easement and its extent
It is agreed that the owner has an easement of way over the carriageway, indeed in the terms asserted by LM Ltd in paragraph 1 of the relief sought by its counterclaim:
"a right to pass and repass over the [carriageway] to and from the highway to their respective properties by foot and with vehicles and a right to halt a single vehicle immediately adjacent to their respective properties for the purposes of loading and unloading the said vehicles"
It was further agreed or assumed without challenge that the right would extend to driving a car into a garage contained within number 4, were such to exist.
LM Ltd however argued, and the judge accepted, that any extension or use of that right of way to secure access to the garden ground, and to park a car there, fell foul of what is known as the rule in Harris v Flower (1904) 74 LJ Ch 127. Because of the important rôle that that rule, and that case, played in the present appeal, it is necessary to make some general observations about it.
The "rule in Harris v Flower"
In Harris v Flower the defendant owned land, the "white land", immediately adjacent to the dominant tenement (the "pink land") served by the way. He erected a single building, partly on the white land and partly on the pink land. The court had to decide whether use of the way to access the building as a whole by passing through the pink land would be for the purpose of obtaining access to the white land; and held that that was the case. It had to determine that question because of the rule as formulated by Romer LJ, 74 LJ Ch at p 132:
"If a right of way be granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B"
However, that rule was only a particular application of the more general principle that the dominant owner can only use the way for the purposes of the dominant tenement, and not for other land. As Cozens-Hardy LJ put it, at p133:
"What is the right of way? It is a right of way for all purposes-that is, for all purposes with reference to the dominant tenement. The question is whether the defendant has not attempted, and is not attempting, to enlarge the area of the dominant tenement. The land coloured white is entirely landlocked…The only access is by the passage over the land coloured pink; and it is in my judgment impossible to use the right of way so as to enlarge the dominant tenement in that manner."
And similarly Romer LJ, when commenting on Finch v Great Western Railway 5 Ex D 254, a case where the dominant owner was held to have legitimately increased the use of the way as a result of a more intensive use of the dominant tenement itself:
"in the present case the defendant might have erected a building on the land coloured pink and used it for a contractor's business, and made use of the right of way for that purpose; but what he is really doing here is, under the guise of the enjoyment of the dominant tenement, to try and make the right of way become a right of way for the enjoyment of both lands, the pink and the white"
That more general proposition was recently set out by the House of Lords in Alvis v Harrison (1991) 62 P & CR 10 at pp 15–16 (a Scottish appeal, which was however stated by the House equally to apply English law):
"A servitude right of access enures to the benefit of the dominant tenement and no other. Thus it cannot be communicated for the benefit of other tenements contiguous thereto….What they may not do…..is to use the way, or permit its use by others, to obtain access to subjects other than the dominant tenement, whether or not they happen to be heritable proprietors of those other subjects."
It should also be noted at this stage that it is the general principle as stated in Alvis v Harrison, rather than the factually constrained version of it stated in Harris v Flower, that arises on the facts of the present case. The owner does not assert a right to pass through number 4 to the garden ground; or at least, that is not his principal interest, since he seeks to access the garden ground not merely on foot but, principally, by vehicle. He does that, not by passing through number 4, but by driving past number 4 and into a different tenement.
The owner's case: "ancillary" use
In powerful submissions before this court Mr Lewison QC did not challenge the general correctness of either the rule in Harris v Flower or the more general statement of principle to be found in Alvis v Harrison. He said, however, that they were subject to a gloss or qualification, on which the owner could rely. That qualification was that, because the agreed easement was to accommodate the use of number 4 as the dominant tenement, the lawful exercise of that easement extended to accommodating any use that was ancillary to use of the dominant tenement. Access to the garden ground for the owner was clearly for the benefit of number 4, and thus was a use ancillary to the agreed core of the right under the easement.
The books do not appear to adopt any principle at the level of generality contended for by Mr Lewison, but he contended that such could be drawn from, principally, three authorities, two of them in this court. However, before turning to those authorities it is necessary to look more closely at the formulation of the principle that they are said to establish. Mr Lewison was clear that the ancillary "use" that he asserted was a use ancillary to the beneficial use of number 4: that is, that parking upon the garden ground by the owner was ancillary to his enjoyment of number 4 as a dwelling-house. Thus, to drive up the carriageway to the garden ground was not to do something ancillary to the easement; rather, it was to use the easement for the very purpose for which the servient owner must be taken to have granted it, that of accommodating the dominant tenement.
Mr Lewison relied first on some observations of Vaughan Williams LJ in Harris v Flower itself, 74 LJ Ch at p132, when explaining the implications under the principle just discussed of the single building being on the two tenements:
"I cannot help thinking that there not only may be, but that there must be, many things to be done in respect of the buildings on the white land which cannot be said to be mere adjuncts to the honest user of the right of way for the purposes of the pink land…..It is not a mere case of user of the pink land, with some usual offices on...
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