Bulstrode v Lambert CHD 1953

Where there is an ongoing dispute as to whether entry, and parking on a residential or even a business site is allowable, then you must look at the previous agreements (e.g. rental agreements) or even custom and practice. Custom and practice can have the effect of giving new or different implied rights as the case of Bulstrode v Lambert showed. 

The parties disputed the effective extent of an easement which gave an express right to pass and repass providing access across a yard to a side door at premises on which a business was conducted at the time of the grant.

Held: The court declined to limit the extent of the express reservation of a right to pass and repass over the whole of a yard coloured brown on the plan to the deed, by reference to the restriction at the point of entry consisting of a pair of gates hung on substantial pillars. The other terms of the grant, by its reference to workmen and the auction mart, were confirmatory of the width of the right granted.

There was an implied right to bring in and take out from the premises goods of the nature referable to the business (it was a furniture business), and to do this using vehicles of a size which could be expected. A further implication was that there was a right to halt in the yard to load and unload because otherwise there would be no point or utility in the access right conferred. These were two necessary implications found to arise as a direct result of the condition that the premises were in at the time of the grant.

The rights to park, and to load and unload vehicles was an incident of easement and Upjohn J described it: ‘It is only an incident of the right of way expressly granted and may be described as ancillary to that easement because without that right he cannot substantially enjoy that which has been reserved to him.’

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