The principles of construction of contractual documents apply equally to the construction of conveyances. A limited right of access to repair “as far as necessary” is not equivalent to a right of way exercisable at all times for all purposes.
The court has considered the extent and scope of an access right and claims for interference and private nuisance in Wilkinson and another v Rolph and another [2023] EW Misc 24 (CC), an acrimonious neighbour dispute “ripe for mediation”.
The parties lived in adjoining properties in a hamlet north of Harrogate, north Yorkshire. The claimants owned and lived in Old Farm, a renovated farm with barn attached. Old Farm was behind and south of Spring Farm, owned and occupied by the defendants.
A conveyance of Old Farm in April 1977 created two easements: a right of way over a roadway owned by Spring Farm to enable the owners of Old Farm to access the front of the farmhouse and; a right of access for the owners of Old Farm to enter Spring Farm, on foot “so far as necessary” to repair and maintain the eastern and southern walls of buildings comprising Old Farm.
The natural reading of the access clause was that the permitted acts – of repair, maintenance etc – referred to any part of the eastern and southern walls and not to the entirety of Old Farm as the claimants alleged. Such works – which included works to windows, gutters and roofs – had to be “reasonably necessary” as opposed to “absolutely essential” and reasonable prior notice of the intention to exercise the right had to be given.
The right extended to checks to see what works were necessary and how to carry them out. It also extended to the placement of scaffolding on Spring Farm to enable the works to be carried out [Moncrieff v Jamieson [2007] UKHL 42]. It did not extend to requiring the ground on the Spring Farm side to be levelled, or requiring a strip of land 3m wide to be maintained cleared of all obstructions all around the walls. Contrary to the claimants’ belief, it was not the same as a right of way exercisable at all hours every day of the week.
Of the numerous historic incidents relied on by the claimants who had “lost all sense of proportion”, the court found only one interference with the access right which caused limited damage and very few established incidents of enjoyment nuisance. The court refused an injunction and awarded nominal damages of less than £1,000.
Louise Clark is a property law consultant and mediator
