Establishing interference with a right of way granted “in common with all other persons having the like right” requires evidence of interference – not merely intensification of use.
The Cambridge County Court has considered what constitutes interference with a shared right of way In Merlin Real Estate Ltd v Balaam and another Case No J00 PE843; [2024] PLSCS 88.
In October 1982 Adrian Pyatt and Peter Balaam, acquired the Wood Hall Estate, near Saffron Walden in Essex, from personal representatives and partitioned it between them.
Pyatt, a property developer and entrepreneur, took the Manor House and six cottages. Balaam, a farmer, took the agricultural land and farm buildings.
Access from the highway to the Manor House and cottages was over a single lane roadway within the land conveyed to Balaam over which Pyatt had the benefit of a right of way.
The right was in common with all other persons having the like right, at all times with or without vehicles. Balaam was responsible for maintaining the roadway in a reasonable state and condition with Pyatt paying a fair proportion of the costs according to user.
Since 1982 Pyatt acquired and converted into dwellings some of Balaam’s buildings, converted a number of outbuildings into residences and obtained planning permission for further dwellings.
In 2020 Pyatt sold out to the claimant, Merlin Real Estate Ltd. At the date of the sale 22 houses were entitled to use the roadway. By the date of the hearing, it was 27 houses with a further 10 planned.
Shortly before the sale to Merlin the Balaams complained, for the first time, that the increased use of the roadway had increasingly hampered their agricultural operations and further development would be excessive.
Merlin sought declaratory relief that their current and intended future use of the driveway was lawful. The Balaams counterclaimed.
The only limitations on the right of way were its shared nature and what the servient tenement could reasonably accommodate.
The court was satisfied that the grant included the right to use the south verge as well as the roadway or alternatively that Pyatt had obtained a prescriptive right to use two passing places which he had used and resurfaced.
The Balaams were not able to show other than de minimis obstruction with their use of the roadway.
Their sons appeared to believe that no one should be using the roadway when they were, but they did not have exclusive use of the roadway, it was shared.
The court concluded that the existing and proposed use of the roadway was not interfering and would not interfere unreasonably with the farming operations.
Louise Clark is a property law consultant and mediator
