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Darryn Harris


Rights of way disputes are more common than you might think, and sometimes these disputes concern the use by the beneficiary of that right of way.

Right of way disputes learning from beavers

For each right of way there will be an express or at least implied limitation on the extent of the right which will generally be limited to a certain width along a certain route and may, for example, be a right of way on foot only so that vehicles are not permitted.

The case of McGill v Stewart & Anor [2020] EWHC 3387 (QB) is the most recent in a long line of right of way cases.

This case turned on the meaning of what the right of way along the lane allowed or prevented.

Background

The Claimant and Defendants’ properties were located off a fairly long, quite narrow private lane, which remained the only conventional means of access to both properties which led Master McCloud to suggest that “(p)erhaps in constructing our places of residence we should learn from beavers and always build with more than one way in or out, because the single narrow lane and its use has become a source of dispute in this human context”.

By a Deed of Transfer the following access rights were granted:

"The right on foot and with or without private motor vehicles over and along the roadway running between the points marked A and B on the annexed plan subject to the Transferee contributing one third of the cost of maintaining such roadway."

The Deed also contained the following covenants:

"Not to carry on or permit any trade business or profession on the property hereby transferred nor to do or permit anything thereon which may be or grow to be a nuisance or annoyance to the Transferors or the owners or occupiers of the adjoining lands."

"To contribute one third of the cost of maintaining repairing and renewing the roadway running between the points marked A and B on the annexed plan."

The Court referred to the roadway as a ‘lane’. It was alleged that the Defendants had failed to observe the restriction in the above Deed in relation to the use of the lane, in particular that there had been a 'longstanding misuse' of the lane by agents of the Defendants in the form of heavy plant and machinery and HGV lorries, including for deliveries of materials and removal of materials from their property and its surrounding land. It was further alleged that the Defendants had allowed use of the lane other than by 'private motor vehicles'.

The Claimant sought a declaration that the true meaning of “private motor vehicles” is restricted to “those wholly owned by the Defendants on a private basis".

The Defendant rejected the Claimant’s interpretation, contending a far wider interpretation than that alleged by the Claimants.

A single joint expert identified that the narrowest point of the lane measured by the surveyor was 2.6m and that it varied along its length between 3m and 5m at different points along the lane.

The Judgment

The crux of the case was to 'ascertain the objective meaning' of the language of the grant. The Court considered that (a) the purpose of the grant was clear on the face of the grant, and (b) the physical nature and extent of the lane was clear and there was no reason to suppose that the lane was materially different at trial than it was at the time of the grant. The Court further confirmed that two key limitations on user of a right of way were (i) the words in the grant and (ii) the nature of the land itself (its physical capacity, in this case that of the lane).

In interpreting the true meaning of “private motor vehicles” the Court held that the use “has to be construed to mean 'vehicles using the lane for the purposes of the use of the private dwelling on this land', because (a) the road is clearly suitable for the sorts of typical vehicles one encounters in everyday life at a dwelling such as postal deliveries, (b) the purpose of the grant of the land (served only by the lane) is for a private dwelling and it would be inconsistent with the grant and basic commercial efficacy if one could not have the usual and customary forms of access such as for repairs to ensure the property remains useable for the demised purpose and (c) the express restrictions on user for commercial purposes do not in my judgment bite on such things as visiting tradespeople since that is not meaningfully the use of the dwelling for commercial purposes.”

“It is a grant of a right of way as the sole access for vehicles to land which must be used only as a private dwelling. There must be no derogation from the grant of the land for that use, and in my judgment a construction which would entail no access for (e.g.) vans, post deliveries, friends and relatives, doctors visiting lawfully for the purpose of serving the domestic use of the property as a dwelling would be a construction incompatible with the commercial purpose of the grant. Emptying a (lawful) septic tank would also fall within that, subject to the characteristics of the lane which in the end determine the outer limits of use…Access for repairs, for deliveries, and for all the usual access one needs for maintenance and use of a property as a private dwelling are necessary and consistent with the grant and the wording of the deed, but use for purposes which are not necessary for continued user of the dwelling as a dwelling (such as significant improvements and new construction) are not implicitly within it.”

The Court then turned its attention to the physical extent of the lane and its capacity. It was clear from the expert’s report that the narrowest point of the lane measured by the surveyor is 2.6m, it was held that this was the limit to the width of any vehicle which can use the lane.

The Court further referred to the case of White v Richards (1993) 68 P&CR 105, the stated facts being similar to the case at hand, and that the figure of 10 tons was the best evidence in terms of the reasonable weight which the lane could sustain without damage.

Finally, the Court held that the test is that the purpose of the use is either the use of the dwelling as a private dwelling such as leaving or arriving home from work or to receive social visits from friends and family or for access necessary to ensure the dwelling and the land on which it is situated remains able to be used as a private dwelling.

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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.

 

Get in touch

If you have any questions relating to this article or if you require any further advice concerning a right of way or property disputes generally, please contact Darryn Harris on [email protected]

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