In the recent case of Shaw v Grouby & another, several properties had been built in the grounds of a former manor house near Swindon.
The original agreement between the owners of the manor house and the other properties included a right of way over a private driveway that served the manor house. This right of way permitted owners of the new houses to use the driveway ‘at all times for all purposes over and along so much of the private driveway edged green on the said plan as is necessary to obtain access to the property’. In return for this right of way, the owner of each property enjoying the right contributed towards the cost of maintaining the driveway.
The owner of one of the properties with the right of way moved the access point from their property onto the driveway from its original position to a new location along their boundary which connected onto the driveway at a point further down the driveway than before and seemingly closer to the manor house. The owner of the manor house objected and amongst other issues raised, challenged the lawfulness of the use of the additional section of driveway, saying that such use went beyond what was strictly “necessary”.
It was decided by the Court of Appeal that:
- When creating a right of way, parties must carefully define the right of way and what rights are granted.
- What is ‘necessary’ should not be construed by reference to a fixed point in time (at the date of the grant). The interpretation of what is ‘necessary’ to access property could vary from time to time and would permit the use of different points of access from the driveway to the Property.
- There was no justification for interpreting ‘necessary’ as requiring the shortest route possible to gain access. By allowing someone to use your property for access for a contribution towards the cost of maintenance means that if they use a longer right of way, the contribution would reflect that fact.
What does this mean for landowners?
Cases such as these do depend on the precise wording of the relevant deed but some lessons can be learned:
- If you want to limit the right of way to a particular or fixed point of access, you must expressly say so in the deed granting such right.
- Ensure the plan used with the deed identifies the maximum extent of the land affected by the right of way. In this case the plan showed a larger section of driveway than perhaps intended.
- Be aware that, unless you make the position clear in the relevant deed, you cannot assume that a gate or other point of access onto your path or drive cannot be moved in the future by the person with the benefit of the right of way.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.