Easements: what constitutes excessive use of a right of way?

A right of way expressly granted “at all times and for all purposes” is capable of accommodating a change of use from agricultural to residential. Whether there is excessive user is fact-sensitive and evaluative. The court has considered the extent of a right of way and dismissed a claim that user was excessive in Bucknell v Alchemy Estates (Holywell) Ltd [2023] EWHC 683 (Ch). In 2014, the claimant acquired Holywell Farmhouse and title to a metalled driveway which gave access to a number of properties including the Yard, owned by the defendant. The director of the defendant and his family had had a proprietary interest in the Yard since 1943 and it was used as an extension of their farm until 1990. By a 1972 conveyance, the defendant’s predecessors in title were granted an express right of way over the metalled driveway “at all times and for all purposes”. The principal issue for the court was whether the right of way could continue to be enjoyed for the redevelopment of the Yard for the purpose of two residential dwellings. The claimant contended that such user was outside the scope of the grant and/or constituted excessive user. There are two aspects to the construction of express rights of way: the meaning of the words used in the document and their status as property rights, intended to be stable and long-lasting, and to apply to (and potentially affect) third parties. The Court of Appeal has stated many times that a right of way under an express grant is not to be restricted to such uses as were reasonably required at the date of the grant (see Jelbert v Davis [1968] 1 WLR 589) but it must not be used excessively, so as to interfere unreasonably with the use by other persons having a similar right. The judge decided that at the date of the grant in 1972 the defendant’s predecessors in title used the right of way over the driveway for agricultural vehicles and purposes on a daily basis. As a matter of construction of the conveyance, the right of way extended across the whole width and length of the driveway, including the unmetalled verges. Change of use from agricultural to residential use did not fall outside the scope of the right granted, and this extended to demolition and reconstruction of buildings and use of the way for construction traffic. The expert engineering evidence showed that the driveway could easily bear the loads involved in the construction of the two dwellings and use by the occupants subsequently living there. Louise Clark is a property law consultant and mediator