Plaintiff owning land with right of way over defendant’s land – Defendant constructing filling station – Plaintiff claiming that works and filling station amounted to obstruction of right of way – Position of right of way – Whether defendant’s use of land amounted to an obstruction of right of way – Judgment for plaintiff
Pridesenior Ltd (the company) owned an area of land beside Canal Road in Bradford. The land was separated into three plots for conveyancing purposes, the first and second of which fronted on to Canal Road, the second plot lying immediately to the left of the first. The third plot lay behind the other two. The division of the land took place by the means of two transfers dated January 16 1989 (the 1989 transfer) whereby the first and second plots were transferred from the company to Burmah Oil Trading Ltd (Burmah). The third remained with the company. The transfers reserved a right of uninterrupted access, with or without vehicles, over the respective plots in favour of the third plot and contained a provision that the right of way could be varied by written request by the servient owner. The transfer of the first plot showed the right of way as a brown area on the plan, which was small scale and lacked any relevant dimensions. It was marked as an area of land extending from Canal Road to the third site.
Subsequently the third site was purchased by the plaintiff which developed it into a small business estate in accordance with planning consent given on the basis that the first and second plots were developed as a petrol filling station. The ownership of the first plot passed to the defendant who commenced the construction of the filling station. The plaintiff issued proceedings alleging that the defendant’s works wholly or partly obstructed its right of way over the first plot to which it was entitled under the 1989 transfer. The defendant contended that since the right of way gave the dominant owner merely limited rights over the servient land, the obstruction caused by the works, and ultimately the filling station, did not amount to an interference with the plaintiff’s rights.
Held Judgment was given for the plaintiff.
1. The right of way had not extended to Canal Road on the plan attached to the 1989 transfer because the original parties had been aware that Canal Road was to be widened, and there was no reason why the origianl parties would have left a strip of land between the boundary of the right of way and the boundary of the first plot. Therefore the right of way was a strip of land which was four metres wide and its boundary followed the outer boundary of the first plot to Canal Road.
2. The area occupied by the right of way was precisely the area which inevitably had to be crossed and re-crossed by traffic throughout the hours the filling station was open and therefore the existence of the filling station amounted to a substantial and actionable interference with the plaintiff’s right of way.
David Hodge QC (instructed by Stones Porter) appeared for the plaintiff; Guy Fetherstonhaugh (instructed by Osborne Clarke, of Bristol) appeared for the defendant.
