Don’t lose your way! 3 misunderstood aspects of the law of rights of way

These notes follow the #HardwickeBrew given by Hardwicke’s Property Team on 31 March 2021 which looked at some issues which commonly arise in rights of way disputes.  All the information below was correct as at 31 March 2021.

Rights of Way

A right of way is a form of easement.  The dominant owner has the right over the land of the servient owner.  A substantial interference with this right amounts to a nuisance and is actionable at law.

Rights of Way & Rights to Park

Does a Right of Way imply a Right to Park?

• Most rights of way would imply a right to stop – temporarily – for the purposes of opening or shutting gates on the way.
• Whether a right of way implies a right to load and unload is a question of fact and depends on the interpretation of the grant and/or the surrounding circumstances.
• A right to ‘use’ may well include a right to unload (Snell & Prideux v Dutton [1995] 1 EGLR 259); a right to pass to an auction mart included a right to load and unload as this was necessary for the enjoyment of the right (Bulstrode v Lambert [1953] 1 WLR 1064).
• A full right to park can be expressly granted or implied; it is a valid easement (Moncreiff v Jamieson [2007] UKHL 42).
• It is possible for a right to park to be implied into a right of way (Moncreiff v Jamieson); however, this is likely to require ‘exceptional’ facts (Waterman v Boyle [2009] 2 EGLR 7).

Conflict between a Right of Way and a Right to Park 

• Can Person A enjoy a right of way over land, and Person B enjoy a right to park over the same land?
• Yes, if there is no conflict (if, for example, the road is wide enough to accommodate both rights).
• In other cases, it is doubtful that the conflict would arise in law:
  • In an express grant (or reservation), the owner of a servient tenement cannot interfere with a pre-existing right of way (by either parking, or granting a right to others to park) over the way in such a manner as to cause a substantial interference with the pre-existing right.
  • In terms of prescription, it could be argued that Person B has acquired a right to park in the form of a right to cause a nuisance to Person A’s pre-existing right of way. However, such a right is analogous to an easement over an easement, which is not permitted at law.
  • See Poste v Cousins [2020] EWHC 582 (Ch) for consideration of these issues.

Intensification of User

• What are the circumstances in which the easement of a right of way will be suspended or lost due to intensification of use by the dominant owner?
• The critical question is whether the right of way has been created by (a) express grant or reservation or (b) implied grant or prescription. Different rules apply.
• Express grant or reservation:
  • The right of way can be used for any extent required for the use of the dominant tenement, irrespective of the purpose for which the dominant tenement was used at the date of the grant
  • White v Grand Hotel, Eastbourne [1913] 1 Ch 113, CA: dominant tenement converted from private dwelling house to hotel; “… the grant is not to be restricted to access to the land for the purpose of which access would be required at the time of the grant”, Joyce J; user lawful.
  • British Railways Board v Glass [1965] Ch. 538, CA: right of way over level crossing used by farmer to gain access to one field from another; conversion of dominant tenement into a camp site; use lawful.
  • Newman v Greatorex [2008] EWCA Civ 1318: right of way granted in 1921 over passage at rear of retail premises “as now used by [N] tenant”; scope of right limited to the sort of use made by N at date of grant.
• Implied grant or prescription:
  • Where a right of way is acquired by user, the extent of the grant must be measured by the extent of the user.
  • RPC Holdings v Rogers [1953] 1 All E.R. 1029; right of way over golf course to plaintiff’s field; right had been used for agricultural purposes but intended use was for access to campsite; the proposed use would be “an unjustifiable increase in the burden of the easement”, Harman J.
  • Giles v Country Building Constructors (Hertford) Ltd (1971) 22 P. & C.R. 978: defendant wishes to demolish two houses on dominant land and build a block of six flats, bungalow and seven garages; proposed use does not involve a ‘radical change in character’ nor ‘a change in the identify’ of the dominant land; thus no excessive user of right of way.
  • McAdams Homes v Robinson [2004] EWCA Civ 214: Neuberger LJ sets out 11 propositions; where dominant land is used for a particular purpose at the time an easement is granted, increase in use even if substantial cannot be objected to by servient owner; two questions – whether development on dominant land represents a radical change in character or change in identify of dominant land & whether use of dominant land as redeveloped would result in substantial increase or alteration of burden on servient land; if answer to both questions is yes then right to enjoy easement suspended or lost.

The Rule in Harris v Flower & Sons

• The general (but flexible) ‘rule’ is that the servient tenement may not be used to go beyond the dominant tenement or to extend the area of the dominant tenement.
  • Harris v. Flower & Sons (1905)74 L.J. Ch. 127, (1904) 91 L.T. 816
  • Peacock v. Custins (2001) 81 P.& C.R. 34;
• Frequently the manner in which the ‘rule’ will operate will be relatively predictable:
  • Bracewell v. Appleby[1975] Ch. 408 (urban example);
  • Jobson v. Record (1997) 75 P.&C.R (agricultural example);
  • Massey v. Boulden [2002]EWCA Civ 1634 (residential example)
• However, in other cases, its application will be relatively unpredictable:
  • National Trust for Places of Historic Interest or Natural Beauty v.White [1987] ! W.L.R. 907
  • Das v. Linden Mews Limited [2002] EWCA Civ 590
  • Gore v. Naheed [2017] EWCA Civ 369
• It is important to note that the starting point, as with so many property rights, will be the particular terms of any express grant.

Bonus Cases:

• Winterburn v. Bennett [2016] EWCA Civ 482 (signage may negative use ‘as of right’)
• Bakewell Management v. Brandwood [2004] UKHL 14 (prescriptive rights may be acquired by use which is criminal as well as tortious; overruling Top Deck v. Hanning (and, in part, Massey v. Boulden (above))

John de Waal QC
John Clargo
Jamal Demachkie
David Peachey