Right of way – Excessive user – Extent of right – Defendant having express right of way over driveway on claimant’s land – Claimant seeking declaratory and injunctive relief in respect of alleged increased use of right of way for construction of two houses on defendant’s land – Whether user being outside scope of grant and/or constituting excessive user – Claim dismissed
The claimant owned and occupied a property known as Holywell Farmhouse, Hodsoll Street, Sevenoaks, Kent which abutted the public highway. The defendant was a company incorporated for the purpose of developing its adjacent property (the yard) which had no direct access to the public highway.
Along the southern boundary, but forming part, of the farmhouse, a metalled driveway ran from the public highway to the yard. It was a single-track road with no passing places. There was a public footpath along the driveway to the yard, and beyond. In 1972, there was an express grant of a vehicular and animal right of way over the driveway for the benefit of the yard at all times and for all purposes.
The claimant used part of the driveway to access not only the farmhouse, but also an open courtyard to the west of the farmhouse, and its adjacent buildings. She also used the whole length of the driveway to exercise an express right of way granted over the yard to access more easily other land she owned behind the yard.
The claimant brought an action for declaratory and injunctive relief relating to the alleged increased use of the right of way for the construction and intended occupation of two houses on the defendant’s land. The claimant contended that such user was outside the scope of the grant and/or constituted excessive user.
The claimant obtained an injunction until final order in the claim, with limited exceptions: [2021] EWHC 1544 (Ch).
Held: The claim was dismissed.
(1) There were two aspects to the construction of express rights of way. The first related to the understanding which the court gave to the meaning of the words used in commercial documents. In general, where there was an issue between the parties in a civil case, the person who asserted something bore the burden of proving it. Here the claimant asserted excessive user of the right of way and nuisance which she had to prove, together with the facts and matters she relied on for that purpose. If the person who bore the burden of proof of a particular matter satisfied the court, after considering the material placed before it, that something happened, then, for the purposes of deciding the case, it did happen. But if that person did not so satisfy the court, for those purposes it did not happen. That might mean that, in some cases, the result depended on who bore the burden of proof: Arnold v Britton [2015] EGLR 53 applied.
Pre-contract negotiations for the purpose of drawing inferences as to meaning were excluded from consideration. The rule excluded evidence of what was said or done during the course of negotiating the agreement for the purpose of drawing inferences about what the contract meant. It did not exclude the use of such evidence for other purposes: for example, to establish that a fact which might be relevant as background was known to the parties, or to support a claim for rectification or estoppel. Those were not exceptions to the rule. They operated outside it: Chartbrook Ltd v Persimmon Homes Ltd [2009] 3 EGLR 119 applied.
(2) Purely contractual rights (with limited exceptions) applied only as between the parties to a contract, and were usually of short to medium duration. Subject only to public policy limits, they might have whatever content the parties pleased. However, property rights were intended to be stable and long-lasting, and to apply to (and potentially affect) third parties. Therefore, they should be clearly recognisable to third parties and their advisers. A right of way under an express grant was not to be restricted to such uses as were reasonably required at the date of the grant. However, an express right of way should not be used for something for which it obviously could not be used: White v Grand Hotel (Eastbourne) Ltd [1913] 1 Ch 113, Todrick v Western National Omnibus Co Ltd [1934] Ch 561, Robinson v Bailey [1948] 2 All ER 791, British Railways Board v Glass [1965] Ch 538, Jelbert v Davis [1968] 1 WLR 589, Rosling v Pinnegar [1998] PLSCS 257; (1998) 54 P & CR 124 and Holmes v Hughes (unreported, 15 July 1988) considered.
(3) A right of way was not to be used excessively, ie, so as to interfere unreasonably with the use by other persons having a similar right. The question whether there was excessive user was fact-sensitive and evaluative. If the judge at trial applied the correct test in law, the appellate court would interfere with that decision only where it was one which no reasonable tribunal could have reached. Accordingly, an evaluative decision by the court in one set of circumstances that there was or was not excessive user could not govern any other set of circumstances: Jelbert v Davis, White v Richards (1994) 68 P & CR 106 and Bee v Thompson [2009] EWCA Civ 1212; [2009] PLSCS 321; [2010] Ch 412 considered.
(4) In the present case, at the date of the grant, the defendant’s predecessors in title frequently used the right of way over the driveway for agricultural purposes. Construing the conveyance, the right of way extended across that whole width and length of the driveway including the unmetalled verges. It was clear from the expert engineering evidence that the driveway could accept the loads involved in the construction of the two dwellings. User of the right of way for the purposes of construction and habitation of two dwellings would not be excessive, relying on the evidence of the traffic experts and lay witnesses. Accordingly, the demolition of the old buildings and the construction of the new did not fall outside the scope of the purposes for which the right of way could be used. The claimant was not automatically entitled to the maintenance of the same rural peace and quiet that she enjoyed when she bought in 2014: Rosling v Pinnegar, White v Richards (1993) 68 P & CR 105; West v Sharp (2000) 79 P & CR 327, 333 and Carpenter v Calico Quays Ltd [2011] EWHC 96 (Ch) applied.
Richard Clegg (instructed by Hewlett Swanson, of Manchester) appeared for the claimant; Nicholas Isaac KC and Robyn Cunningham (instructed by Veale Wasbrough Vizards LLP) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Bucknell v Alchemy Estates (Holywell) Ltd
