In the case of Parker v Roberts  EWCA, the Court of Appeal considered whether to imply a right of way over a private road to access a parcel of land at the rear of a property owned by Mr Jamie Roberts at number 40. Mr Roberts had received planning permission to build a house on that parcel of land but in order to develop, he required a right of way over the private road.
A conveyance of 6 May 1968 had granted a right of way over the private road for the benefit of the "land hereby transferred". It was possible to identify the "land hereby transferred" i.e. the dominant land and it was the property at number 40 which included its rear garden which was the parcel of land which Mr Roberts was seeking to redevelop. Mr Roberts' counsel argued that the rear garden was entitled, together with number 40, to the benefit of the right of way over the private road.
The Court of Appeal agreed with Mr and Mrs Parker, the owners of the private road that for so long as the parcel of land formed part of the garden of number 40 and was used for purposes ancillary to the dominant tenement (i.e. it was a garden), it benefited from the right of way. However, the nature of this right of way was ancillary.
When it came to implying a right of way for the benefit of the parcel of land, the Court of Appeal reminded that a term will be implied where it would have been regarded as "reasonably necessary" or "obvious" to the parties and this was in the context of the terms of the contract and the facts known to the parties at the time. In this case,the question was whether granting a right of way for the rear garden would have been reasonably necessary or obvious at the time of the 1968 conveyance and the Court of Appeal held that the parties in 1968 would not have expected residential redevelopment of the rear garden.
So whilst "present need" might be pressing and here Mr Roberts was in receipt of planning permission which he wished to implement, an easement will not be implied where the wording of the grant can be interpreted and the "present need" would not have been obvious to the parties at the time of grant.
The new property would need to be accessed via a private road owned by Mr and Mrs Parker, who objected to Elmbridge borough council and criticised its proposed design. Mr Roberts has a right of way along the road to accessing his own home and back garden, but Lady Justice King, sitting with two other judges in the Appeal Court, has now ruled that the right of access “evaporates” if Mr Roberts carves the building plot out of his garden. The judge added that Mr Roberts’ house building plan “will have to be aborted” without the private road access.