Trespass – Excessive user of right of way – Relief – Defendants having right of way over claimant’s road for agricultural purposes only – Defendants using their land as gypsy caravan site – Enforcement action by local council failing to stop use – Injunctions granted to council and claimant ignored – Claimant seeking declaration that entitled to prevent all access to defendant’s land over road – Whether such relief necessary to provide effective remedy – Claim allowed
The claimant owned one of several cottages in the village of Ripley, Surrey, that lay to either side of an unmade-up access road, which was also in the claimant’s ownership. At the end of the road was an area of land that the claimant had sold to the first defendant’s father in 1995 with the benefit of a right of way over the access road for agricultural purposes only. That site had subsequently passed to the first defendant, who had retained part of it but sold off the remainder, which had been divided into various plots owned by the second to 12th defendants. The 12th defendant’s land was accessed immediately off the access road, while the owners of the other plots had to continue from there across the 12th defendant’s land by way of a track. The defendants were gypsies and used their plots for the stationing of gypsy caravans.
During 2009 and 2010, the local council refused an application for retrospective planning permission for caravan site use; they issued enforcement notices requiring the removal of the caravans and obtained injunctions to that effect. These were ignored. Meanwhile, the first defendant brought in large quantities of hardcore by lorry and used it to lay a road across his land and to form hardstanding for eight caravan plots. Lorries, trailers, vans, caravans and construction equipment passed along the road at all times of the day and night. The claimant also obtained injunctions but they too were ignored. When it laid concrete blocks to prevent vehicular access to the site, the occupiers began to park along the road.
The claimant brought proceedings against the defendants for trespass on the road. In addition to damages and an injunction, it sought a declaration that it was entitled to obstruct all access to the site from the road. It contended that, since the usual remedies had failed, the only effective and permanent way of preventing the repeated acts of trespass was to obstruct all access to the defendants’ land. Only the 12th defendant contested the claim.
Held: The claim was allowed.
The usual remedy for excessive user of a right of way was an injunction to restrain user other than as permitted by the easement, rather than to obstruct the user. However, where it was impossible to sever the good user from the excessive user, the servient owner could prevent any use of the right. If the usual injunction would not offer an effective remedy, the court could grant a declaration preventing all use of the right if, having regard to the interests of all those affected, such relief was proportionate, just and appropriate.
The defendants had purchased their land with the intention of using it as a caravan site, which would inevitably involve trespassing onto the claimant’s land. Further, they had all been complicit, at the very least, in the repeated breach of the court’s orders. If vehicular access to the defendants’ site were available, gypsies would return in numbers to live there in caravans. That would physically damage the road and affect the value of the claimant’s cottage. The only way in which the claimant could prevent acts of trespass on the road, both by those wanting to expand the existing gypsy site and by the existing occupiers, was to obstruct all access to the site. Anything less than complete obstruction of all access to the 12th defendant’s land and the remainder of the site would not prevent future acts of trespass.
The 12th defendant was an experienced businessman. He had purchased his land to sell it to gypsies, in the knowledge that access to the site depended on a right of way that was for agricultural purposes only and that the intended use of the site would inevitably involve non-permitted user of the road. In completing the transaction he had taken a calculated risk, which had backfired. In the exceptional circumstances of the case, the claimant’s interests had to prevail over those of the 12th defendant and the court would make the declaration sought against all 12 defendants.
Emily Windsor (instructed by Charles Russell LLP, of Guildford) appeared for the claimant; Graeme Kirk (instructed by RJ Hawksley & Co, of Blackwater) appeared for the 12th defendant; the other defendants did not appear and were not represented.
Sally Dobson, barrister
