Is a landowner with a right of way entitled to obtain access to the right of way from every part of the dominant tenement? There is no hard and fast rule; the court must construe the deed that created the right of way to establish whether the user is entitled to unlimited access or is entitled only to access from one or more points along the route.
Sisson v Emmett [2014] EWCA Civ 64; [2014] PLSCS 41 provides us with up-to-date guidance from the Court of Appeal. The dispute concerned access to a road that ran for 30 metres contiguously with the boundary of the dominant tenement. Were the owners of the dominant tenement entitled to gain access to their property from any and all points along their boundary? And, if this were the case, would the brick wall that the owners of the servient tenement were proposing to construct alongside the roadway constitute an actionable interference with the right of way, or would the provision of a single, gated point of access through the brick wall protect the owners of the servient land against claims that they were interfering with their neighbour’s right of way?
The Court of Appeal noted that there was nothing in the conveyance that created the right of way that expressly limited the owner of the dominant tenement to one line of access between specified points. It was also relevant that there were no physical barriers between the land and the road on the date of the conveyance and that the conveyance included fencing covenants in respect of all the boundaries around the dominant land, except the boundary that was coterminous with the roadway. The court decided that this implied that the owners of the dominant land were entitled to free access to their property and ruled that the owner of the servient tenement had conferred linear rights of access all the way along the boundary.
Not every interference with a right of way is actionable. There must be a substantial interference with the enjoyment of it and there will be no actionable interference with a right of way if it can be substantially and practically exercised as conveniently as it has been previously. The test is not whether what the user is left with is reasonable. The court must decide whether it is reasonable for the user to insist on being able to continue to use the right of way in accordance with his preferred modus operandi: B&Q PLC v Liverpool and Lancashire Properties Limited (2001) 81 P&CR 20.
The owners of the dominant tenement were entitled to the relative luxury of rights to gain vehicular and pedestrian access to their land along the whole of the right of way. The construction of the wall would severely restrict the way in which they obtained access to their property and would make their use of the right of way much less convenient than it was now. Therefore, the construction of the wall would constitute an actionable interference with the right of way, even if the servient landowner were to provide a vehicular entrance to the roadway.
Allyson Colby is a property law consultant
