Construction of a Right of Way

06 Oct 2023

You are fortunate enough to own a house on a large plot of land and wish to realise some of its value by dividing it in two and building another house.  Access to the plot is gained via a lane which passes over, and is part of, a neighbour’s land; your land enjoys an express right of way over the lane “at all times and for all purposes with or without vehicles”.  Are you going to be able to use the lane for the construction traffic, and thereafter for access to the second house in addition to the current house?

The extent of an express right depends on the terms of the grant, construed in accordance with the general rules as to the interpretation of legal documents.  In St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No. 2) [1975] 1 W.L.R. 468 Sir John Pennycuick said, “One must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of the surrounding circumstances.”

The principles of interpretation are well settled and do not require detailed repetition.  As explained by Lord Neuberger in Arnold v Britton at [2015] A.C. 1619: “When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to ‘what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean’, to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101, para 14…”

Lord Neuberger went on to explain that the meaning has to be assessed in the light of, among other things, the natural and ordinary meaning of the words used, other relevant provisions of the document, overall purpose, the facts and circumstances known to the parties and commercial common sense.  In discussing the role of commercial common sense he emphasised again at [17] the importance of the language used, saying: “The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision” (per Falk J in Vneshprombank LLC (a company registered and in liquidation in the Russian Federation) v Bedzhamov [2022] EWHC 101 (Ch)).

The language of the grant must thus be construed in the light of the circumstances, which may include the physical characteristics of the land at the time of the grant.  The language of the grant should be read in a practical way, looking at the geographical and commercial realities (Hillman v Rogers [1987] N.P.C. 183).  Once the physical extent of the way is determined (i.e. over the lane), subject to any restriction which might be gathered from the words of the grant or the surrounding circumstances, it can be used for any purpose and to any extent for the time being required for the enjoyment of the dominant land or any part of it, regardless of the purpose for which the dominant land was used at the date of the grant (see White v Grand Hotel, Eastbourne Ltd (1912) 106 L.T. 785; [1913] 1 Ch. 113; Robinson v Bailey [1948] 2All E.R. 791).

In White v Grand Hotel the dominant land had effectively been converted from a private dwelling-house into an hotel, and the court had to consider an oral grant of a right of way.  Joyce J accepted that

“where there is an express grant of a private right of way to a particular place, to the unrestricted use of which the grantee of the right of way is entitled, the grant is not to be restricted to access to the land for the purposes of which access would be required at the time of the grant”.  User for the purposes of the hotel was justified, and the decision was upheld on appeal ([1913] 1 Ch. 113 at 116) when Lord Cozens–Hardy MR said, “The plaintiffs’ main point was … that it was only a right of way for what I may call domestic purposes as distinct from trade purposes; and that it was only for such use as could reasonably be expected to be in the contemplation of the parties at the time when the defendants’ house, St Vincent Lodge, was a private residence, and ought not to be altered now that St Vincent Lodge is turned into a [hotel-] garage. We heard that point fully argued by counsel for the appellants and we have come to the conclusion that there is no ground for limiting the right of way in the manner suggested. It is not a right of way claimed by prescription. It is a right of way claimed under a grant, and, that being so, the only thing that the Court has to do is to construe the grant; and unless there is some limitation to be found in the grant, in the nature of the width of the road or something of that kind, full effect must be given to the grant, and we cannot consider the subsequent user as in any way sufficient to cut down the generality of the grant.”

User of an authorised kind may be had to any increased extent which the physical state of the way will for the time being allow – see Bulstrode v Lambert [1953] 1 W.L.R. 1064, where the vehicles, the use of the yard by which was expressly authorised, were not confined to such as could originally have passed through a gate, with a bar over it (which at the date of the reservation was inside the entrance to the yard, but had been removed before the dispute arose).  This is subject to the limitation, however, that the user must not become so excessive as to become a nuisance.

Jelbert v Davis [1968] 1W.L.R. 589 concerned agricultural land which had been conveyed together with “the right of way at all times and for all purposes over the driveway … leading to the main road in common with all other persons having the like right”.  Although under the wide terms of the grant use of the driveway for vehicular traffic different to that contemplated at the time of the grant was allowed, it was held that excessive user of the way such as would interfere with the rights of “other persons having the like right” or cause a legal nuisance would be outside the terms of the grant, looked at in the circumstances at the date of the grant.  In that case the proposed user of the driveway for 200 caravans and/or tents on the dominant land would be excessive.

Rosling v Pinnegar (1986) 54 P. & C.R. 124 saw a similar approach.  A Georgian mansion had been conveyed with a right of way, at all times and for all purposes with or without vehicles, over a narrow lane, in common with all other persons entitled thereto.  The lane was the only access to the mansion, and to 25 other dwellings in the village.  The mansion was opened to the public and the village residents sought an injunction to prevent it.  It was held that whilst the change of use of the mansion, in that it was now open to the public, was not a breach of the terms of the grant in itself, the consequent user would interfere unreasonably with the use of the lane by the other persons entitled to use it and was excessive.

Put simply, then, it seems that an express grant “at all times and for all purposes with or without vehicles”, being in the widest terms, should permit user for access to the dominant land – and every part of it – for any purpose so long as the consequent user would not interfere unreasonably with the use of the way by the other persons entitled to use it.  If it could be shown that such (increased) user would become so excessive as to become a nuisance, then such user might be restrained.  This would require careful analysis of such factors as the characteristics and dimensions of the way; the current nature, volume and frequency of user; and the likely impact of the increased user.

In the recent Bucknell v Alchemy Estates (Holywell) Ltd [2023] EWHC 683 (Ch) the dominant land – a yard – enjoyed an express right of way over a driveway “at all times and for all purposes with or without animals and vehicles”.  The owner constructed two houses on the land and argued that the driveway could be used by its construction vehicles and subsequently by the residents.  The servient owner argued that such use was excessive and a nuisance.  The High Court considered the scope of the right, and confirmed that an express right of way is not restricted to such uses as were reasonably required at the date of the grant.  Nevertheless, the right is limited to what the servient land could physically accommodate because that is all that the parties can reasonably have contemplated at the time of grant (Todrick v Western National Omnibus Company [1934] Ch 561).  Taking into account that at the time of the grant the same grantor had granted a right of way in the same terms for the benefit of a third party’s nearby residential property, the court ruled that it was contemplated that the driveway could be used for residential purposes, not just agricultural.  The court reviewed the authorities and confirmed that a right of way must not be used excessively, that is, must not be used so as to interfere unreasonably with the use by other persons having a similar right.  The question whether there is excessive user is fact-sensitive and evaluative, and an evaluative decision by the court in one set of circumstances as to whether there is excessive user cannot govern any other set of circumstances.  In that case, the right of way extended across the whole width and length of the driveway including the unmetalled verges.  It was to be expected that buildings might need to be demolished and reconstructed occasionally and that would involve access using the driveway, and the driveway could physically accommodate the loads involved in the construction phase.  The servient owner was not automatically entitled to maintenance of the same rural peace and quiet that they enjoyed when they acquired the servient land.  In all the circumstances, use of the driveway by construction vehicles, and subsequently by residents of the two houses, did not amount to excessive user or nuisance.

The judgment in Bucknell provides convenient guidance as to the determination of the extent of expressly granted rights of way, and highlights that, in considering the scope of an easement and whether there might be excessive user, every case will turn on its particular facts.  So, are you going to be able to use the lane for the construction traffic, and thereafter for access to the second house in addition to the current house?  Probably.  But possibly not.  It depends.

Article by Andrew Skelly – first published by PLA


Andrew Skelly

Call: 1994


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