CHAPTER TWO – RIGHTS OF WAY
Disputes can also commonly arise in situations where one property has the advantage of a right of way over another and that right is in some way interfered with or prevented from being exercised. Such rights, a species of easement, can take myriad of forms and can be absolute or limited in scope. A typical example could be that Party A has a right of access over a driveway owned by Party B in order to access their property (without which access would not be possible) and that the right allowed access at all times and for all purposes, with or without vehicles. In the event that Party A’s access is prevented by Party B blocking the driveway and preventing access then that would amount to interference with that right and is actionable.
There is a distinction between an express right of way granted by deed (which would be an ‘easement’) and a simple, or ‘bare’, license.
A license is simply defined as permission granted orally or in writing without consideration which allows the licensee access which, without the permission, would amount to trespass. A license is the least onerous way for a landowner to grant another party lawful access since it can be revoked immediately at any point without the requirement to give notice and can therefore be of varying duration.
An easement is a legal interest in land belonging to another. They can be acquired in several ways including by way of an express grant by deed, implied grant and by prescription. A detailed consideration of the creation and acquisition and extinguishments of easements is, however, beyond the scope of this book and for further information reference should be made to specialist texts such as Gale on Easements.
Profits à Prendre
Closely linked to easements are profits à prendre, which are rights to take something else from the others land and can include minerals, timber, fish (which is known as profit of piscary) and to exercise sporting rights, including the right to kill animals such as game. If a party with the benefit of a profit1 is being prevented from exercising it then that right can also be enforced in the same way as an easement for a right of way which has been interfered with and is unable to be exercised.
For interference with a private right of way to be actionable, the interference with the use of the right of way must be substantial. What is ‘substantial’ will of course depend on the facts of each case, but, generally and practically, must have the effect of either severely restricting, or completely preventing, the right of way from being used whether at all or temporarily.
In B&Q plc v. Liverpool and Lancashire Properties Limited2 the Court were required to consider what would amount to a substantial interference to an express right of way. In that case, B&Q had applied for an injunction restraining the defendant from constructing a 3,500 square foot extension to the rear of its industrial unit which B&Q claimed would affect its right of way. The court granted the injunction and held that the test was not whether what would be left taking into account the interference would be reasonable, but rather whether it was reasonable to insist on usage of what had been granted. If, after the interference, it would not be possible to exercise the right as substantially and practically as before, (or to use Mr Justice Blackburne’s words “rendered materially less convenient”3) then it is likely that substantial interference has occurred.
There have been several cases on the issue of whether a locked gate may amount to a substantial interference. In Kingsgate Development Projects Ltd v Jordan and another4, the Court found that three gates all within 100m of each other on an access track amounted to a substantial interference and ordered one of them to be removed.
The starting point in any event is to consider the nature of the right of way and wording of any operative conveyance, including any plans, including whether the party complaining of the interference has the benefit of it.
Change of Use and Excessive Use
A dispute may also arise not in relation to the right of way being unable to be used but rather that the right is being used excessively or for something which is not permitted under the terms of the grant, such as the use of a right of way for access to a single dwelling for access to transport materials for constructing a new dwelling adjacent to it.
The starting point in such a position is to consider the wording of the grant or the right of way. It may be that the usage is plainly in breach of the terms, particularly if it was a limited grant. However, if the right is unlimited then any increased usage would only be actionable in nuisance if it is excessive and whether or not it is excessive will depend on the facts. The remedy in such a situation is to apply to court for an injunction restraining the excessive use and the dominant owner will be liable in trespass.
Increased usage can also be stopped if the right of way was obtained by prescription if the burden of the increased usage has been caused by a major change in the dominant land5. In those circumstances the party with the benefit of the right should either seek to obtain an express grant for the increased usage or to wait until the additional use has been exercised without force, without secrecy and without permission for a period of at least 20 years so as to be also acquired by prescription.
Remedies for Interference
In the event that the interference in question is considered to be able to satisfy the test of being substantial then the there are four remedies available for the innocent party to seek, aside from alternative dispute resolution.
Self-help / abatement
The first is self-help (or abatement) which has been explained in the previous chapter. In this context this would entail physically moving of the cause of the interference to enable the right of way to be used again. For example, the physical removal of a locked gate, or the towing away of a parked vehicle blocking a track. However, caution must be exercised when considering this approach as it could give rise to disputes over whether the party exercising self-help did so in a reasonable manner (or used excess force in doing so) and whether any unnecessary damage was caused as part of the process.
The first ‘court based’ remedy is to apply for a declaration from the court as to the extent of the right of way. The purpose behind seeking declaratory relief is that in some cases settlement can be achieved by the court giving its view on the extent of a right of way which would then result with the unsuccessful party abiding by the outcome and acting accordingly, as well as providing certainty for the future. There is also another benefit to seeking a declaration which is that the declaration will be binding on the parties’ successors in title, and not just the parties themselves.
An injunction is the only one of the four remedies for interference which will actually require action to be taken by the party causing the interference in the event that it is granted.
However, the granting of an injunction is not a guaranteed outcome since an injunction is an equitable remedy which is granted at the Court’s discretion and will not be granted in circumstances where the claimant would be adequately compensated by an award of damages. It can also be defeated if there has been extensive delay in making the application6. It is often worth reminding clients that injunctions are the exception rather than the rule owing to their draconian nature and the severe repercussions which can apply if breached, which includes committal for contempt.
Claim for Damages
The final remedy is a simple claim for damages, which can be brought to compensate for any loss which has been suffered as a result of the interference. Such damages are calculated on the tortious basis and will therefore be subject to the usual rules on remoteness and a duty to mitigate.
1‘Profit’ is a common shorthand reference to profits a prendre
2(2001) 81 P & CR 20,  EWHC 463 (Ch),  1 EGLR 92,  15 EG 138,  EG 101
4 EWHC 343 (TCC)
5McAdams Homes Ltd v. Robinson  EWCA 214
6The doctrine and defence of laches provides that an equitable remedy (such as an injunction) allowing a claimant to enforce their legal rights should not be granted owing to the claimants delay in applying to do so.