Interference with a right of way: a warning or a win for developers?

Insights - 04/12/2017

In the recent case of Lea v Ward [2017] the Court was asked to determine the extent of an imprecise right of way and whether development works had amounted to an “actionable interference” of that right.

Not all encroachments to rights of way are actionable, as the law acknowledges a degree of tolerance from competing land owners and users. The interference must be substantial before action can be taken. The test is whether the right of way can be substantially and practically exercised as conveniently as it was before the obstruction.

The facts

This was the principal issue in the case of Lea v Ward. In this case, Mr Lea had a right of way over Mr Ward’s land. The right was granted by a deed in 1979 and was expressed to be over a particular “track or way” between two points. Neither the location nor the width between these two points were accurately identified.

Mr Ward had plans to implement a residential development on his land. In the course of these works, he had erected fencing which temporarily obstructed Mr Lea’s right of way. The building works were also alleged to have obstructed and altered the right of way, including the narrowing of its width.

There were 2 keys issues for the Court:-

• Assessing the extent of the right of way; and

• Whether there was an actionable interference caused by the works.

Establishing the extent of the right of way

Mr Lea’s case was that the right of way extended to a whole of a strip of land that was eight metres wide. Mr Ward argued that it was limited to the width of the track physically discernible on the ground as at the date of the 1979 deed. Applying well established principles of contractual interpretation, the Court found in favour of Mr Ward.

In these sorts of cases, the starting point for the Court is the wording of the original deed and the surrounding circumstances that existed at the time of the grant. In this case, the reference to “track or way” suggested that the easement was granted over something physically discernible at the time of the grant – i.e. “something recognisable and having been beaten by use”.

Taking all of this into account, the Court decided that the parties’ intention had been that the right of way applied only to the track that was used in 1979, which was assessed to be just 3.75 metres in width.

Was there an actionable interference?

Mr Lea had argued that both the erection of temporary fencing and the subsequent obstructions to the route amounted to actionable interferences with the right of way. In both instances, the Court found in his favour.

However, in the case of the fencing, the degree of interference was short-lived and, in the case of the physical obstructions, the degree of interference was not significant. For these reasons, the Court declined to grant an injunction and only modest damages were awarded.

Comment

This case introduces no new law but it highlights a number of practical points.

For the developer, the case is a reminder of the difficulties that can arise when works encroach upon the rights of other land owners / users. Although Mr Ward was able to avoid an injunction in this case, he might consider himself fortunate to have done so. On another day, and under slightly different circumstances, the outcome could have been very different. Certainly, the case does not provide authority for developers to make adjustments to rights of way in order to accommodate their development plans.

The case is also a useful reminder of the unpredictable nature of Court proceedings. For Mr Lea, the decision not to award an injunction and to only receive minimal damages must feel like a hollow victory.

Disputes of this nature can become very personal and principled. If those sorts of emotions are allowed to influence decision making in litigation, it can often lead to disappointing – and expensive – outcomes.

At Morrisons, we specialise in these sorts of disputes and have experience with all forms of dispute resolution. If you have any questions about the issues raised in this blog, please feel free to contact Graham Halsall, who leads the Property Litigation Team at our Redhill office. Graham is contactable by telephone on 01737 854577 or by email on [email protected]

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