If a landowner diverts a right of way, can the person with the benefit of an easement compel reinstatement? Not necessarily, as Allyson Colby explains
Key points
- The owner of land over which an easement passes cannot unilaterally alter the route of the easement to suit himself
- But the availability of an alternative route may affect the remedies available where an easement is obstructed
The Law Commission’s report Easements, Covenants and Profits à Prendre (No 327), published in 2011, highlighted an issue that often causes problems for landowners. The owner of land over which an easement passes cannot unilaterally alter the route of the easement to suit himself (unless the deed granting the right expressly or impliedly authorises him to do so).
The rule dates back to Pearson v Spencer (1861) 121 ER 827 and Deacon v South Eastern Railway Co (1889) 61 LT 377 and the Law Commission decided not to interfere, preferring to discourage parties from taking matters into their own hands. But it did suggest that the statutory jurisdiction to discharge or modify restrictive covenants should be extended to cover easements as well.
Change is long overdue and, on 18 May 2016, the government announced plans to legislate “to simplify the law around land ownership”. But events intervened – and the legislation that was promised has yet to see the light of day. How has the law developed in the meantime?
Cause for complaint
Lea v Ward [2017] EWHC 2231 (Ch); [2017] PLSCS 178 concerned the obstruction and alteration of the route of a right of way. The owner of the land that benefited from the easement complained that the servient landowner had erected retaining walls and gate posts that encroached on his right of way and had diverted the route in order to accommodate an adjoining development. Did the new structures substantially interfere with the right of way and was the dominant landowner entitled to a mandatory injunction requiring their removal?
It has long been established that a servient landowner can unilaterally grant a legal easement along an alternative route, but that he cannot compel the dominant landowner to use it. And, thanks to Selby v Nettlefold (1873) LR 9 Ch App 111, although those with the benefit of an easement are entitled to deviate around obstructions placed in their path, they cannot be forced to accept such deviations in place of routes that they are entitled to use. On the face of it, therefore, if the dominant landowner did have cause to complain, the owner of the right of way had an uphill battle ahead of him.
Recent authorities
There were also more recent authorities to consider. Despite sympathising with the suggestion that, where a right of way is realigned to an equally convenient route there can be no actionable interference with an easement, the judge sidestepped the argument in Greenwich Healthcare NHS Trust v London and Quadrant Housing Trust [1998] 3 All ER 437.
Instead, the judge made a declaration that, if there was a cause of action in respect of the realignment of the road, any attempt to preserve the original right of way would result in an award of damages in lieu of an injunction. The judge explained that this was due to the exceptional circumstances of that case. The realignment of the road would facilitate the construction of a large new hospital and improve road safety. Furthermore, the proposals had been well publicised, no one had objected and no reasonable objection could be made to them.
In Heslop v Bishton [2009] 2 EGLR 11, the court restated the common law rule. But it treated Greenwich as authority that the availability of an alternative route may affect the remedies available where a right of way is obstructed (even though it will not, of itself, extinguish the right originally granted). Indeed, the judge did consider whether the dominant landowner should be left to accept the alternative right of way that was available in that case, but decided that this would be wrong because the owner of the servient land was not prepared to grant permanent rights over it and was offering a mere licence, of only 10 years duration, instead.
So the rule that landowners cannot unilaterally divert easements survives unscathed. But it seems that the courts may be able to prevent beneficial use of land being frustrated by their choice of remedy.
Choosing a remedy
In Lea the court decided that there had been substantial interferences with the original right of way, which could not be exercised as conveniently as before. However, the judge took the view that, if the alternative route was as convenient as the original route, then, thanks to Heslop, he could decline to grant an injunction requiring the original route to be restored.
Interestingly, no mention was made of the exceptional circumstances in Greenwich, where the public stood to gain from the development. And there were not, or did not appear to be, any such circumstances here.
One stretch of the new route was shown to be less convenient for the dominant landowner because vehicles were forced onto a slope that left them leaning slightly to one side and were obliged to approach a gate at an angle instead of straight on. However, if the owner of the track were to agree changes to ensure that the new route was just as convenient as the previous right of way, and grant a formal right of way over the new route, the judge indicated that he would be prepared to follow Greenwich and declare that the dominant landowner was not entitled to an injunction, despite the interference with his right of way.
The decision could help strengthen developers’ bargaining positions when an easement needs to be diverted. But developers should continue to tread carefully; if litigation ensues, it will pay to remember that courts tend to frown on high-handed or unneighbourly conduct.
Allyson Colby is a property law consultant
