Construing rights of way
"The task of interpretation with which the court is faced requires the intention of the parties to the original conveyances to be ascertained from the words of the grant read in the light of the background circumstances which would have been known to the parties."
It also deals with the following:
- The phrase "a right of way at all times ... for all purposes connected with the reasonable enjoyment of the property" - did the factual circumstances narrow what on the face of it was clearly a very wide right?
- A right of way relating to vehicles will generally be limited to the width of the track and does not include a right to use the space beyond the track boundaries. There is no concept of "swing room".
- The phrase "all reasonable and usual purposes" - was that clause narrowed by the use of the dominant land - mentioned in the grant - at the time of the grant?
- Ancillary rights - inspection of property and reading meters.
- The term "rebuilding or renewal" - did the easement allow access for redevelopment?
Right of way
At all times and for all purposes
 EWCA Civ 816
This is a neat example of a widely drafted right of way that will not be interpreted narrowly just because it inconveniences the owner of the servient tenement or because the owner of the dominant tenement could easily use some other means of access.
One set of neighbours had a right of way to the rear of their property over the garden of the adjoining property. The grant was in the following terms:
"The Transferor grants to the Transferees and their successors in title and their licensees a right of way at all times with or without tools and equipment over and along the footpath shown coloured yellow on the plan annexed hereto for the purposes of gaining access to and egress from the rear of the property for all proper purposes connected with the reasonable enjoyment of the property causing as little damage as reasonably possible and forthwith making good any damage occasioned in the exercise of the right hereby granted."
The neighbours complained of excessive use on the grounds that the owners of the right used it when they did not need to because their front door could be used instead. Rimer LJ at para 3:
"They said the appellants were using the footpath so as to gain access to No. 34 via its back door when they could as well gain access via its front door. They allowed visitors to use the footpath when there was no need. They used the footpath when taking their dog for its daily walks when there was similarly no need. They allowed their children to use it (at times wheeling a bicycle) when there was also no need. Their case, in short, was that it was unreasonable to use the footpath in circumstances when the front door was equally suitable. Such unreasonable use was aggravated by the fact that the footpath passed immediately along the rear wall of No. 36 and past a patio window and French doors, so invading the respondents' privacy. The claim was for an injunction restraining the alleged unreasonable use, and also for damages."
The trial judge interpreted the grant as confining the permitted use of the footpath to situations where access was "not convenient or proper to be done or contemplated through the front door."
The Court of Appeal disagreed. There was nothing in the grant to restrict the right of way in such a manner. If the parties to the grant had intended so to restrict the right of way, they would have done so in the grant. Rimer LJ:
"There is at least one obvious implicit limitation in the grant, namely that it cannot be used by vehicles. That is apparent from its physical circumstances and from the fact that it is expressly described as an easement over a "footpath". There is, however, nothing else in the grant that cuts down the right of the appellants as dominant owners to use it in connection with all proper purposes connected with the use of No. 34…. In my judgment the grant plainly gives the appellants as dominant owners an unrestricted right to use the footpath for the purposes of access and egress in connection with their ordinary domestic activities as a household living at No. 34." (para 13)
"If the intention of the parties were to restrict the easement to a right of way in circumstances when access via the front door is not reasonably practicable, the grant would have said so." (para 14).
Note that in interpreting the right of way the court used the classical method. It looked first at the words of the grant (which were wide) and then looked at the surrounding physical circumstances at the time of the grant to see whether or not the grant was limited. (It was over a footpath). Apart from that narrow factor, there was nothing else that limited the grant. This may have been annoying for the neighbours who owned the servient tenement, but they were stuck with it.
No concept of “swing room”
 EWCA Civ 267
This case confirms that – in the absence of evidence to the contrary - a right of way relating to vehicles will generally be limited to the width of the track and does not include a right to use the space beyond the track boundaries. The mere fact that it is more convenient to have some tolerance for wider vehicles does not by itself extend the right of way unless there is clear evidence that this was the intention of the parties at the date of the grant.
The case involved the right of way for agricultural vehicles. At issue was the extent of the right of way, namely whether it was limited to the track itself or whether allowance could be made for “swing room”. The CA upheld the trial judge’s decision that there could be no such allowance. The trial judge noted that there were no special features or physical characteristics affecting the right of way, which might prevent the words of the grant being given their natural meaning. He concluded:
“if, as I think, the right is only over the cart track it means that the Claimants are not entitled to go over the grass verge when exercising it. It equally means that the tractor and machio machine 4.15 metres wide are not entitled to exercise the right of way as the width is greater than the width of the cart track”.
The appellant had relied on the dicta of Megarry J in VT Engineering v Richard Barland (1968) 19 P&CR 890 which dealt with the issue of swing space and tentatively suggested that the servient owner might have to allow some degree of tolerance for wide loads so that he could not fence right up to the edge of the right of way.
The Court of Appeal agreed with the trial judge that the proposed principle that there could be some tolerance could no longer stand following the observations of Millett LJ in Minor v Groves (2000) P&CR 136 at 143. Elias LJ concluded:
“it follows that, in my judgment, this argument for swing space fails. That is not to say that it could never be the case that a purposive interpretation of an express grant, having regard to the purpose for which the right was granted, could justify a construction extending the width of a track beyond its physical dimensions. But in my view before the court could consider this possibility there would need to be cogent evidence that a narrower construction, concentrating on the physical features of the land, would not achieve the objective which the parties must have intended. In this case there is evidence that some agricultural machinery can use the track without difficulty”.
Elias J. noted that if the appellants were right then it would lead to sterile corridors of land extending significantly beyond the boundaries of the track.
Right of way for "all reasonable and usual purposes"
Not limited by nature of land at time of the grant
 EWCA Civ 1309
There was no reason to infer any restriction on a right of way for "all reasonable and usual purposes" so as to limit its use to purposes in connection with the original use of the dominant land. Accordingly, although the plots were used as garden land at the time of the grant, it was now entirely "reasonable and usual" to use them for the building and occupation of houses and the right of way could be used to access those houses.
The parties owned neighbouring plots of land, which enjoyed rights of way granted by conveyances executed between 1919 and 1921. The description of the plots within the conveyances included reference to a "piece or parcel of garden ground situate in the rear", which formed part of each plot sold. There was a track running along each part of "garden ground" conveyed; and each purchaser was given a right of way over this track to enable access to the relevant plot of garden ground. The right of way was expressed to be "for all reasonable and usual purposes".
The Claimant intended to build houses on his three plots of land and sought a declaration that the rights of way over the track could be used by the purchasers of those properties as a means of access to them. The Defendants contended that the reference to "reasonable and usual" in the terms of the right of way operated to limit its use according to the use of the land at the time of the grant, i.e. as garden ground. Accordingly, the Defendants argued that the proposed use of the track in connection with residential use of the land concerned would be an excessive, and so unlawful, use of the rights. (Note: The Defendants did not seek to argue that their use of the track would be interfered with if the track was used by the occupiers of the new houses.)
The Claimant argued that the reference to "reasonable and usual" was merely intended to exclude offensive or obnoxious purposes and that the description of the land as "garden ground" was only intended as means of identification. The Claimant pointed out that the Defendants' interpretation of the right of way would amount to a restriction against using the land for anything other than a garden and that any such intended limitation would have been included expressly within the conveyances.
The Judge declared that his rights were limited to a use of the track for 'all reasonable and usual purposes relating to the [dominant land] as garden ground'. The Claimant appealed.
The Court of Appeal confirmed that its task was to interpret the intention of the parties to the original conveyances by reading the words of the grant in light of the background circumstances which would have been known to the parties. It emphasised that the purpose for which a right may be used is not automatically limited by the original use of the dominant land. Rimer LJ at para 28:
"The task of interpretation with which the court is faced requires the intention of the parties to the original conveyances to be ascertained from the words of the grants read in the light of the background circumstances which would have been known to the parties. As I observed in [Young v Brooks  EWCA Civ 816, at , Lord Hoffmann's five principles of interpretation in the Investors Compensation Scheme
case … apply as much to the interpretation of an express grant of an easement as to that of a contract. Context, as the judge rightly said, is all … "
The Court noted that the conveyances transferred the garden plots with no limitation on their future use. Moreover, the right of way granting access to them "for all reasonable and usual purposes" was not linked to, or limited by, the use of the plots as gardens at that time.
The Court did agree that the background scheme in which the grants were made, namely binding together the purchasers of the cottages as a local community, was important when seeking to interpret the right of way. However, the Court pointed out that the original parties' contemplation that the plots would be used as garden land did not equate to an intention that the track could only be used to access them for so long as this use as garden land continued.
In the circumstances, it was not possible to infer that the original parties intended the rights over the track to be enjoyed only in connection with the use of the dominant plot as garden land. The garden plots could be put to any use that the owner might choose, subject to the "reasonable and usual" qualification referred to in the conveyances, and that there was nothing to prevent the use of the track in connection with any such use of the plots. Rimer LJ at para 31:
"It is, it seems to me, obvious that no draftsman intent upon limiting the use of the track to a use for the purposes of the garden (or like) use of the plot would have limited its use to 'all reasonable and usual purposes'. A use 'for all purposes' means, on the face of it, what it says and would in principle permit the use of the track for any purpose (or at any rate any lawful purpose) to which the dominant tenement might from time to time be put. A use ‘for all reasonable and usual purposes’ obviously imposes a qualification on an 'all purposes' use. It would, however, be an odd phrase to use if the intention were to limit the use to the type of use to which the dominant plot was currently being put. Had that been the intention, the drafting of the limitation would not have been difficult. The grant could, for example, have been limited to the use of the track in connection with the use of the dominant plot as garden land or for like uses ...".
The use of the plots for the building and occupation of houses in accordance with a planning permission was a "reasonable and usual" use. The right of way over the track could therefore lawfully be used for the purpose of building such houses and for the benefit of their occupants once built.
Inspection of property and reading meters
 EWCA Civ 1254
A right to enter onto adjoining land "for the purpose of effecting…maintenance repair and decoration" extended to permitting access for the purposes of inspection and to read the gas and electricity meters installed within the boundary wall. The Court upheld the decision to grant an injunction to prevent the gate at the driveway entrance from being locked.
The Court of Appeal held that a right of inspection to determine whether works of maintenance, repair or decoration are required was necessary to make effective the right of access granted by the transfer to carry out those works. The Court felt that it would be absurd if there was no right to inspect the property in connection with the right to repair etc. The Court also noted that the dictionary definition of "maintain" included to "keep (a building, machine or road) in good condition by checking or repairing it regularly” and considered that this was the correct reading of "maintenance" in the paragraph.
On the issue of C’s entitlement to go onto D’s land to read her gas and electricity meters, the court accepted that maintenance, repair and decoration of a house does not obviously include reading its meters. However, the Court noted that the meters had been installed by the developer on the boundary wall and it could not have been intended that the purchaser of Number 96 (and successors) would be unable to read them. The Court referred to the guidance given by Lord Neuberger in Moncrieff v Jamieson  UKHL 42, where he commented that, "the law will imply a term into a contract, where, in the light of the terms of the contract and the facts known to the parties at the time of the contract, such a term would have been regarded as reasonably necessary or obvious to the parties."
The Court felt this was a clear case for applying this principle and that access to read the meters was implicit in the transfer.
"Rebuilding or renewal"
Access for redevelopment
 EWCA Civ 1180
The Court of Appeal held that a right of access for “rebuilding or renewal” of a property should be considered in context and should not be given a restrictive interpretation, particularly since it contained measures to protect the servient owner. Accordingly, the right could be used in connection with a substantial redevelopment on the dominant owner’s site.
The Claimant developer had the benefit of a right ofaccess across adjoining units “for the purpose of carrying out any maintenance repair rebuilding or renewal to the [Claimant’s] Property”, subject to certain conditions. The Claimant had planning permission to demolish the existing single storey buildings on its property and to build a 5/6-storey block, significantly increasing the building area. The Claimant needed to use its right of access over the adjoining property in order to carry out the redevelopment of its site.
The High Court disagreed that the easement would permit the Claimant access over the adjoining land in order to carry out its proposed works. Based on the dictionary definition of “renew”, the judge took the view that the easement only allowed the Claimant to restore or rebuild the existing buildings on the site.
The Court of Appeal reminded the parties of the importance of construing the easement in context, and not regarding it as a restrictive covenant against redevelopment. It commented that the restrictive interpretation of “rebuilding or renewal” in planning law and leasehold covenants does not necessarily apply to a right of entry provision; any such approach to the easement here would lead to uncertainty and make the right of access more difficult to operate in practice.
The Court agreed with the first instance decision that “rebuilding” included the reconstruction of an existing building, as originally built or similar. However, it felt that the right of entry should have “a broader and more flexible meaning” than its literal construction. The Court commented that the right must impliedly include access for the purposes of demolition as part of the rebuilding process, even if demolition was not intended to lead to rebuilding. In the Court’s view, the easement contemplated that the existing land and buildings would not remain the same forever and the meaning of “the Property” was therefore not confined to the existing buildings or so as to exclude the land around those buildings. The Court considered its wider construction of the easement to be a sensible one, which would reflect the intention of the parties at the time the right was granted, noting that the conditions attaching to the right of access operated to minimise disturbance and inconvenience to the adjoining owner. Accordingly, the Claimant was permitted to exercise the right of access for the purpose of carrying out its redevelopment.
Although the Court based its decision on the construction of “rebuilding” in the easement, it commented that the Claimant would also be able to rely on the reference to “renewal” in order to exercise the right of entry. The Court felt that the use of “renewal” in the provision was intended to have a different and wider meaning than “rebuilding” and that it would extend to operations not covered by “rebuilding”.