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On appeal from: [2017] EWCA 238 and [2015] EWHC 3564 (Ch)

This appeal considered, in the context of easements, what the correct approach is to the requirement that to qualify as an easement a right must accommodate the dominant tenement in the sense that it provides ‘utility and benefit’ in the use of the dominant land. In particular it considered what the correct approach is when the right is a right to recreation which is enjoyed in a self-contained way on the servient land, and the correctness of the decision in Re Ellenborough Park.

The Supreme Court, by majority, dismissed the appeal and allowed the cross-appeal. The Court held that the intention of the Facilities Grant was to confer a property right in the form of an easement, and that this was a single comprehensive right to use a complex of facilities as they evolved. The Court fully discussed In re Ellenborough Park [1956] Ch 131, to consider whether its effect was that the Facilities Grant could not amount to an easement because it conferred recreational and sporting rights. With Lord Carnwarth dissenting, the Court held that this was not the effect. The Court concluded that, though the grant of an easement in this case was novel, given the greater running costs and operational responsibilities, the grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement.

For judgment, please download: [2018] UKSC 57
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (4 Jul 2018 morning session) (4 Jul 2018 afternoon session) (5 Jul 2018 morning session)