Easements – Excessive use – Right of way – Remedy – Appellant one of owners of plots with right of way over road for agricultural purposes only – Plots used as gypsy caravan site – Enforcement action by local council and injunctions failing to stop such use – Respondent road owner seeking declaration of entitlement to prevent all access to plots over road – Declaration and injunction granted – Whether such relief necessary to provide effective remedy – Whether legitimate grounds for such order against appellant – Appeal allowed in part The respondent owned a cottage together with an unmade-up access road that ran past it. At the end of the road lay a site that the respondent had sold in 1995 with the benefit of a right of way over the access road for agricultural purposes only. The site subsequently came to be subdivided into plots owned and used by gypsies for stationing their caravans. The appellant purchased part of the site in 2009, with a view to its use as a gypsy caravan site. He brought in large quantities of hardcore by lorry and used them to lay a road across the land and to form hardstanding for eight caravan plots. Access to all the plots was gained from the access road across the appellant’s land. Lorries, trailers, vans, caravans and construction equipment passed along the road throughout the day and night on their way to and from the site. Enforcement action by the local council, and injunctions obtained by both the council and the respondent, were unsuccessful in preventing unlawful use of the site and of the access road. When the respondent took self-help measures, by laying down concrete blocks to prevent vehicular access, the occupiers began to park along the road. In the court below, the respondent obtained a declaration that it was entitled to obstruct all access to the site from the road. The judge held that, since all the usual remedies had failed, obstructing access was the only effective way of preventing the repeated acts of trespass. An injunction was also granted, restraining the owners and occupiers of the site from using the road, save for the purpose of removing their possessions from the site, but with liberty to apply for the modification of the order in the event that such an application could be justified by subsequent events: see [2010] EWHC 3296 (Ch); [2011] 1 EGLR 19; [2011] 07 EG 102. The appellant appealed. He contended that he had personally ceased any unlawful use of the access road by the time the respondent commenced proceedings and that his past unlawful conduct could not justify an order that prevented him from lawfully exercising his easement in the future. Held: The appeal was allowed in part. (1) The appellant’s land had the benefit of an agricultural easement, which was a legal right of property. Where the owner of an easement increased its use excessively and unlawfully, the servient owner could obtain an injunction restraining the dominant owner from use in excess of the grant, leaving it to the dominant owner to work out how to disentangle the permitted and excessive uses: Cawkwell v Russell (1856) 26 LJ Ex 34, Bernard v Jennings (1968) 13 WIR 501 and Hamble Parish Council v Haggard [1992] 1 WLR 122 applied. In addition, the servient owner could take practical steps to prevent the unlawful exercise of the easement. In rare situations, where it was impossible to separate out lawful from unlawful use, that might involve a complete obstruction of the easement. In such situations, so long as the indivisible use, or purely unlawful use, continued, and the dominant owner showed no need to use the easement for purely lawful purposes, then the court would refuse to grant an order for removal of the obstruction and might grant a declaration expressly authorising its retention. Each case would turn on its specific facts. However, excessive and unlawful use of an easement did not destroy that property interest: Graham v Philcox [1984] 1 QB 747 applied. Even where complete obstruction of the easement was permitted, because it was being used for both lawful and unlawful purposes in an indivisible manner, the easement itself was not brought to an end. The declaration and injunction granted to the respondent were framed in such extensive and absolute terms as to amount to a complete negation of his property right. Although the judge had been entitled to conclude that an unusually draconian order was the only practical way of stopping the unauthorised use of the access road by travellers, the appellant’s situation was different from that of the other defendants to the action. He had not been in breach of any order by the time the respondent brought proceedings and there was no finding that he intended, or was likely, to breach any future order limiting him to lawful use of the road. Nor was there any finding that the appellant had any relationship with the occupants of the site, or those associated with them, such as to implicate him in their continued unlawful use. In the circumstances, there was no justification for the wide declaration and injunction, without time limit, made against him. (2) A servient owner was not entitled to prevent entirely any exercise of a right of way, or other easement, by the dominant owner on the ground that that was the only way to prevent others from persistent unlawful use of the way. This was not a case where it was impossible to separate lawful from unlawful use. Each plot enjoyed an independent right to an easement over the access road. There was no principle of law that the lawful use of the easement attaching to one part of such sub-divided land could be obstructed by the servient owner in order to prevent unlawful use of a similar easement attaching to one or more owners of other plots. On the other hand, the grant of a declaration was discretionary and there were exceptional facts in the case, including that the appellant had acquired his land with the intention of developing it and selling on plots for use as a traveller caravan site, even though he knew that the access road was restricted to agricultural purposes. In the exceptional circumstances, the court could legitimately have exercised its discretion by declaring that the respondent was entitled to obstruct all use of the access road by the appellant until it was reasonably satisfied that the appellant himself, or any licensee or tenant or his, or any purchaser from him, wished to use the land for agricultural purposes and required vehicular access for that purpose, or until further order of the court. The facts also justified a declaration that the respondent was entitled to obstruct pedestrian access by the appellant until the site was vacated by all those occupying it for non-agricultural purposes, or until the respondent was satisfied that the appellant or any licensee or tenant or purchaser from him wished to use the access road in lawful exercise of the easement, whichever was the earlier, or until further order of the court. A declaration in such terms should be substituted for that made by the judge. Further, since there were no principled grounds for an injunction prohibiting the appellant from lawfully exercising the agricultural easement attached to his land, the injunction against him should be set aside and replaced by one that prohibited his use of the access road save in accordance with the terms of the original grant. George Laurence QC and Graeme Kirk (instructed by The Hawksley Partnership LLP, of Blackwater) appeared for the appellant; Emily Windsor (instructed by Charles Russell LLP, of Guildford) appeared for the respondent. Sally Dobson, barrister
Easements – Excessive use – Right of way – Remedy – Appellant one of owners of plots with right of way over road for agricultural purposes only – Plots used as gypsy caravan site – Enforcement action by local council and injunctions failing to stop such use – Respondent road owner seeking declaration of entitlement to prevent all access to plots over road – Declaration and injunction granted – Whether such relief necessary to provide effective remedy – Whether legitimate grounds for such order against appellant – Appeal allowed in part
The respondent owned a cottage together with an unmade-up access road that ran past it. At the end of the road lay a site that the respondent had sold in 1995 with the benefit of a right of way over the access road for agricultural purposes only. The site subsequently came to be subdivided into plots owned and used by gypsies for stationing their caravans. The appellant purchased part of the site in 2009, with a view to its use as a gypsy caravan site. He brought in large quantities of hardcore by lorry and used them to lay a road across the land and to form hardstanding for eight caravan plots. Access to all the plots was gained from the access road across the appellant’s land. Lorries, trailers, vans, caravans and construction equipment passed along the road throughout the day and night on their way to and from the site.
Enforcement action by the local council, and injunctions obtained by both the council and the respondent, were unsuccessful in preventing unlawful use of the site and of the access road. When the respondent took self-help measures, by laying down concrete blocks to prevent vehicular access, the occupiers began to park along the road.
In the court below, the respondent obtained a declaration that it was entitled to obstruct all access to the site from the road. The judge held that, since all the usual remedies had failed, obstructing access was the only effective way of preventing the repeated acts of trespass. An injunction was also granted, restraining the owners and occupiers of the site from using the road, save for the purpose of removing their possessions from the site, but with liberty to apply for the modification of the order in the event that such an application could be justified by subsequent events: see [2010] EWHC 3296 (Ch); [2011] 1 EGLR 19; [2011] 07 EG 102.
The appellant appealed. He contended that he had personally ceased any unlawful use of the access road by the time the respondent commenced proceedings and that his past unlawful conduct could not justify an order that prevented him from lawfully exercising his easement in the future.
Held: The appeal was allowed in part.
(1) The appellant’s land had the benefit of an agricultural easement, which was a legal right of property. Where the owner of an easement increased its use excessively and unlawfully, the servient owner could obtain an injunction restraining the dominant owner from use in excess of the grant, leaving it to the dominant owner to work out how to disentangle the permitted and excessive uses: Cawkwell v Russell (1856) 26 LJ Ex 34, Bernard v Jennings (1968) 13 WIR 501 and Hamble Parish Council v Haggard [1992] 1 WLR 122 applied. In addition, the servient owner could take practical steps to prevent the unlawful exercise of the easement. In rare situations, where it was impossible to separate out lawful from unlawful use, that might involve a complete obstruction of the easement. In such situations, so long as the indivisible use, or purely unlawful use, continued, and the dominant owner showed no need to use the easement for purely lawful purposes, then the court would refuse to grant an order for removal of the obstruction and might grant a declaration expressly authorising its retention. Each case would turn on its specific facts. However, excessive and unlawful use of an easement did not destroy that property interest: Graham v Philcox [1984] 1 QB 747 applied. Even where complete obstruction of the easement was permitted, because it was being used for both lawful and unlawful purposes in an indivisible manner, the easement itself was not brought to an end.
The declaration and injunction granted to the respondent were framed in such extensive and absolute terms as to amount to a complete negation of his property right. Although the judge had been entitled to conclude that an unusually draconian order was the only practical way of stopping the unauthorised use of the access road by travellers, the appellant’s situation was different from that of the other defendants to the action. He had not been in breach of any order by the time the respondent brought proceedings and there was no finding that he intended, or was likely, to breach any future order limiting him to lawful use of the road. Nor was there any finding that the appellant had any relationship with the occupants of the site, or those associated with them, such as to implicate him in their continued unlawful use. In the circumstances, there was no justification for the wide declaration and injunction, without time limit, made against him.
(2) A servient owner was not entitled to prevent entirely any exercise of a right of way, or other easement, by the dominant owner on the ground that that was the only way to prevent others from persistent unlawful use of the way. This was not a case where it was impossible to separate lawful from unlawful use. Each plot enjoyed an independent right to an easement over the access road. There was no principle of law that the lawful use of the easement attaching to one part of such sub-divided land could be obstructed by the servient owner in order to prevent unlawful use of a similar easement attaching to one or more owners of other plots.
On the other hand, the grant of a declaration was discretionary and there were exceptional facts in the case, including that the appellant had acquired his land with the intention of developing it and selling on plots for use as a traveller caravan site, even though he knew that the access road was restricted to agricultural purposes. In the exceptional circumstances, the court could legitimately have exercised its discretion by declaring that the respondent was entitled to obstruct all use of the access road by the appellant until it was reasonably satisfied that the appellant himself, or any licensee or tenant or his, or any purchaser from him, wished to use the land for agricultural purposes and required vehicular access for that purpose, or until further order of the court. The facts also justified a declaration that the respondent was entitled to obstruct pedestrian access by the appellant until the site was vacated by all those occupying it for non-agricultural purposes, or until the respondent was satisfied that the appellant or any licensee or tenant or purchaser from him wished to use the access road in lawful exercise of the easement, whichever was the earlier, or until further order of the court. A declaration in such terms should be substituted for that made by the judge. Further, since there were no principled grounds for an injunction prohibiting the appellant from lawfully exercising the agricultural easement attached to his land, the injunction against him should be set aside and replaced by one that prohibited his use of the access road save in accordance with the terms of the original grant.
George Laurence QC and Graeme Kirk (instructed by The Hawksley Partnership LLP, of Blackwater) appeared for the appellant; Emily Windsor (instructed by Charles Russell LLP, of Guildford) appeared for the respondent.
Sally Dobson, barrister