Article by Managing Editor Ian Quayle
This case is a useful reminder of some of the problems that can be encountered when giving advice concerning rights of way. It highlights the problems and deficiencies with plans and the need to ensure clients are aware of the difficulties in determining the extent of a right of way and the problems that can result.
The claimants owned a yard in Stourport-on-Severn consisting of buildings and land together with a right of way from the highway across land owned by the defendant.
The right of way in question had been granted when the two relevant parcels of land were separated back in 1992 when the yard had been sold off.
As is common the width of the right of way was not specified and this lack of clarity culminated in a dispute between the defendant and the claimants’ predecessors in title. The claimants acquired the yard in 2018.
At trial, the court decided that the wording of the 1992 grant was wide, encompassing and expressly permitting all types of vehicles to use the right of way. There was evidence to show that prior to the grant of the right of way the owner had operated a nursery and garden centre which required HGV’s and other large commercial vehicles as well as cars and vans which used the right of way to access the car park.
The trial judge found predominantly for the claimants and in doing so specified measurements for the width of the right of way from the main road through to the yard.
The judge ruled that the defendant had interfered with the claimants’ right of way in failing to maintain trees and bushes adjoining it. This interference included allowing trees to overhang the right of way and to obstruct vehicles and a telephone line running to the yard.
In addition, the defendant had failed to maintain the road surface and installed a moveable fence across part of the right of way which created a gap that prevented vehicular access to the yard. The claimants were awarded damages of £2,000 and injunctions for a period of 10 years preventing the defendant from obstructing the right of way and telephone services running to the yard and requiring him to maintain the trees adjoining the right of way to prevent them obstructing vehicles.
The defendant appealed the decision.
The appeal is of interest due to the following –
- It provides a useful reminder that an appeal judge can overturn a decision of a lower court if it is wrong procedurally or otherwise unjust. An appeal is not a rehearing and findings of fact can only be overturned where there was no evidence to support them, or no reasonable judge would have made them. Restating an argument was not a ground of appeal.
- The grounds of appeal all failed
- The damages awarded at trial was low. The appeal judge would have awarded £6,400. A 10-year period for the injunctions was justifiable in view of the long history of unneighbourly behaviour.
What can we learn from this case –
a. Acting for Buyers
- When creating new rights of way specify the extent of the way both length and width. Where it is not possible to identify the width of a right of way clarify the vehicles that the parties intend will use the way. Where the owner of the servient land owns land adjoining the right of way it could be agreed that vehicles are permitted to overhang either side of the right of way. Rather than relying on a plan ensure the relevant deed contains a detailed description.
- Ensure that the deed identifies what has been agreed regarding repair and maintenance, who is responsible for the repair and maintenance and what is the extent of repair or maintenance required.
- Where there is more than one property permitted to use the right of way responsibility for repair and maintenance should be divided equitably between them with provision for ADR in the event of dispute.
- If there are trees, wires, cables, or anything else overhanging the right of way consider ensuring that the servient title owner or other third party ensures that they do not form or create any type of obstruction.
- Consider whether the owner of the dominant land is entitled to carry out improvements to the right of way.
- If the right of way is subject to being gated ensure that the provision for keys, responsibility for shutting and or locking the gate or gates, responsibility for repair and maintenance of the gate and gates are dealt with in the deed.
- Consider the current and future use of the dominant land. Does the right of way permit additional or future uses. If additional land or property is acquired by the owner of the dominant land can the existing right of way be used for the new land or property.
- Remember the common law position relating to repair and maintenance and if the deed creating the right of way fails to deal with these issues advise the buyer client of the deficiency and explain the common law position. The case of Carter v Cole  EWCA Civ 398 clarifies the common law position regarding repair and maintenance issues. The case involved a dispute relating to the repair of a right of way, and payment of contributions to the cost of repair, that turned upon the express terms of a reservation. The Court of Appeal highlighted the general principles that apply at common law in the absence of any such express clause. They are as follows:
(1) A grantor of a right of way (“the servient owner”) is under no obligation to construct the way;
(2) The grantee may enter the grantor’s land for the purpose of making the grant of the right of way effective viz to construct a way which is suitable for the right granted to him (“the dominant owner”);
(3) Once the way exists, the servient owner is under no obligation to maintain or repair it;
(4) Similarly, the dominant owner has no obligation to maintain or repair the way;
(5) The servient owner (who owns the land over which the way passes) can maintain and repair the way, if he chooses;
(6) The dominant owner (in whose interest it is that the way be kept in good repair) is entitled to maintain and repair the way and, if he wants the way to be kept in repair, must himself bear the cost. He has a right to enter the servient owner’s land for the purpose but only to do necessary work in a reasonable manner.
b. Acting for sellers
- If creating a new right of way, consider specifying the permitted point of access and egress from the servient land to the dominant land.
- Consider the issues that a buyer might want to be dealt with.
- Consider whether the seller as owner of the servient title needs to retain rights over the servient land including the right to grant additional rights of way to other parties