Rights of Way
Issues that commonly arise relate to the width of the right of way, the route that it takes and its extent. A right of way in the context of a private right as opposed to a public right of way has to be from one point to another. Problems can often arise where the right of way has been recorded in old legal documents and so the right does not fit into the context of the modern world. For example, a right of way granted pre-motorbikes and cars.
A right of way in legal terms is a type of easement which is defined as a right benefiting land which is exercisable over other land. It is best remembered by way of thinking that the easement “eases” the use of the land that has the benefit. Also lawyers talk about the easement or right of way “attaching” to the land and not the owner. In other words, it is a right annexed to the land and is not a personal right of the owner of the land itself. In practice this has three important consequences. First, it means that anyone who is entitled to use the land is also able to use the right of way. Secondly, it is able to be enforced by anyone in possession of the land and, thirdly, the right cannot be separated from the land itself.
The leading text book by Colin Sara “Boundaries and Easements” defines a private right of way as “an easement permitting people to pass to and fro over another person’s land from one point to another for the benefit of land belonging to the person entitled to the right of way”.
So, it is worth noting that a right of way is a right of travel and so does not include a right to park on land. That said there is an acceptance by the courts that where a right of way exists it does include a right to stop for sufficient time to load or unload. This does on occasion present a problem as to what “sufficient time” actually means.
The existence of a right of way does not mean that there cannot be any obstructions. So, for example, there can be a gate across a right of way and there can be circumstances where the right of way is defined as to be only used at specific times or even days of the week.
Some rights of way define the width of the way and can also have a plan attached showing its route. Problems occur where this has not been done and there are issues as to the width of the access route and it's course.
A problem area is where use of the way has changed over a period of time. Examples are that cars in today’s era are generally bigger and heavier than they were fifty years ago and the same applies to agricultural vehicles such as tractors. Also, the extent of the use of the way may change significantly. In the case of Jelbert v. Davis dating back to 1968 it was stated that “no one of those entitled to the right of way must use it to the extent which is beyond anything which was contemplated at the time of the grant”. This can be very useful in presenting what can be described as “excessive use”.
Whether an obstruction gives rise to a legal action depends on whether the obstruction is a “substantial interference” with the right of way. The two leading cases on what is a “substantial interference” are B&Q plc v. Liverpool & Lancashire Properties Ltd (2000) and Emmett v. Sisson (2014). In B&Q the High Court stated:
“The test of whether there is an actionable interference with an easement does not begin with looking at what… is left with after the interference….but instead with looking at whether the insistence on being able to continue to use the whole of the easement as originally granted is reasonable. As long as it is reasonable in insisting on that, then the question is whether the interference means the right cannot be substantially and practically exercised as conveniently as before the interference”
In the case of Emmett, the Court of Appeal ruled that in a private driveway dispute, there was an entitlement to exercise the “relative luxury” of what was an ample right to gain both vehicular and pedestrian access to their land from a driveway along the whole length right of way, unless this was either unreasonable or perverse.
Whilst generally the right of way is a right of passage it is possible for a right to park to be granted as an easement.
What about repairing the right of way? If there is nothing set out in the grant of the right of way then no obligation exists for either party. This said it is possible that a lack of repair can reach the point where it obstructs the right of way and interfere with the use of the same, which would be actionable through the courts. And again it is possible that the right of way may be damaged by use, which can lead to a court reaching the conclusion that that has been caused by excessive use.
Representative cases include:
- Acting for clients whose neighbour was exercising his right of way by parking his car on the clients’ land. After correspondence from Fleet he agreed not to do so in the future;
- Acting for clients who wish to develop part of their land through which a right of way existed. Successful negotiations carried out to alter the direction of the right of way;
- Acting for the owners of a right of way over a courtyard where the owners of the courtyard had built flower beds preventing the clients from turning their car in the courtyard as permitted under the right of way. We successfully had the offending flower beds removed;
- Acting for an owner of a right of way who was barred from using the same by the other party locking the gate and insisting that the right of way only be used during daylight hours. There was no such restriction in the right and Fleet successfully obtained the combination of the padlock used to lock the gate and an acceptance by the other party that the right of way could be used at any time whether day or night;
- Acting for an owner of a right of way where the right had not been used for very many years. The other party claimed that the right of use had now been lost. The right had now become commercially valuable. Successfully "reinstated";
- Proposed extension to right of way over our client's land by increased traffic to a proposed caravan site. Successfully defeated; and
- Acting for owners of commercial land who sought to register a right of way over a lane leading from their land to the high street. The matter was strenuously opposed and resulted in a hearing before the Property Chamber Tribunal. The Tribunal decided in our clients’ favour and ordered the Land Registry to register the right of way.