Fairview New Homes plc v Government Row Residents Association Ltd
Right of way exercisable over road running along boundary of dominant tenement – Whether access limited to that enjoyed at date of grant – Whether desired new access amounted to excessive user
Members of the defendant association owned houses in Enfield, Middlesex, standing on a narrow strip of land lying between the old River Lee to the east and the Lee Navigation Canal to the west. The houses fronted a 12 ft wide private roadway, Government Row, which ran along the east bank of the canal and terminated, approximately 100m to the south of the members’ houses, at Lock Bridge which connected to a public road on the opposite canal bank. For many years both the strip and a large area to the east of the old river (the factory area) had belonged to the government-owned Royal Small Arms Factory. During its years of operation, traffic proceeding westwards from the factory would cross the old river at Rifles Bridge, and then, heading south-west, would take a short diagonal route across the strip (the old access) to Lock Bridge, which could not be used without “just clipping” Government Row. On March 8 1982 Government Row was conveyed to a property company which subsequently transferred it to the defendant association. The 1982 conveyance expressly reserved for the benefit of land retained the right at all times to pass with or without vehicles over and along Government Row. Towards the end of the 1980s the decision was taken to close the factory, following which the plaintiff, who had acquired more than 100 acres of the factory land and parts of the strip, obtained planning permission for the construction of 1,300 homes. The permission was subject to the condition that, emergencies excepted, access to the new development should be afforded exclusively by a new causeway to be built by the plaintiff near the northern edge of the development. Anxious to sell 31 houses before completion of the causeway (scheduled for the end of 1998) the plaintiff obtained a relaxation of that condition, allowing for buyers, pending such completion, to use the Lock and Rifle bridges, provided that the route from Rifle Bridge (the new access) formed a 90° junction with Government Row. To meet that requirement, the plaintiff constructed a new access some 45 ft to the north of the old one. The association members, fearing that the resulting traffic would obstruct their use of Government Row, placed two cars across the new access. In summary proceedings by the plaintiff for removal of the cars the defendant contended: (a) that the 1982 conveyance did not allow for any access other than the old access; alternatively (b) that the new access would, by placing an unreasonable burden on the servient tenement, amount to excessive exercise of the easement.
Held The cars should remain pending a full trial of the action.
Right of way exercisable over road running along boundary of dominant tenement – Whether access limited to that enjoyed at date of grant – Whether desired new access amounted to excessive user Members of the defendant association owned houses in Enfield, Middlesex, standing on a narrow strip of land lying between the old River Lee to the east and the Lee Navigation Canal to the west. The houses fronted a 12 ft wide private roadway, Government Row, which ran along the east bank of the canal and terminated, approximately 100m to the south of the members’ houses, at Lock Bridge which connected to a public road on the opposite canal bank. For many years both the strip and a large area to the east of the old river (the factory area) had belonged to the government-owned Royal Small Arms Factory. During its years of operation, traffic proceeding westwards from the factory would cross the old river at Rifles Bridge, and then, heading south-west, would take a short diagonal route across the strip (the old access) to Lock Bridge, which could not be used without “just clipping” Government Row. On March 8 1982 Government Row was conveyed to a property company which subsequently transferred it to the defendant association. The 1982 conveyance expressly reserved for the benefit of land retained the right at all times to pass with or without vehicles over and along Government Row. Towards the end of the 1980s the decision was taken to close the factory, following which the plaintiff, who had acquired more than 100 acres of the factory land and parts of the strip, obtained planning permission for the construction of 1,300 homes. The permission was subject to the condition that, emergencies excepted, access to the new development should be afforded exclusively by a new causeway to be built by the plaintiff near the northern edge of the development. Anxious to sell 31 houses before completion of the causeway (scheduled for the end of 1998) the plaintiff obtained a relaxation of that condition, allowing for buyers, pending such completion, to use the Lock and Rifle bridges, provided that the route from Rifle Bridge (the new access) formed a 90° junction with Government Row. To meet that requirement, the plaintiff constructed a new access some 45 ft to the north of the old one. The association members, fearing that the resulting traffic would obstruct their use of Government Row, placed two cars across the new access. In summary proceedings by the plaintiff for removal of the cars the defendant contended: (a) that the 1982 conveyance did not allow for any access other than the old access; alternatively (b) that the new access would, by placing an unreasonable burden on the servient tenement, amount to excessive exercise of the easement.
Held The cars should remain pending a full trial of the action.
1. The plaintiff was correct in contending that where the way in issue ran along the boundary of the dominant tenement there was no requirement, unless the contrary intention was expressed, that access should be limited to that enjoyed at the date of grant. A new access was permissible so long as it did not unreasonably interfere with the rights of other users: see Pettey v Parsons [1914] 2 Ch 653 per Lord Cozens-Hardy MR at p663; Jelbert v Davis [1968] 1 WLR 589 per Danckwerts LJ at p597.
2. However, the defendant had adduced sufficient evidence to suggest that use of the new access might well give rise to excessive user by the various dominant owners, it being noteworthy that the planning authority had not considered the impact of their latest decision on the members of the association. For that reason the issue was unsuitable for summary determination, under RSC Ord 14A. Furthermore, given the relative weakness of the defendant and the uncertainty as to how many houses would be completed before the causeway came into operation, the balance of convenience weighed against an interlocutory order for the removal of the cars.
Alan Steinfeld QC and Edward Cole (instructed by Forsyte Saunders Kerman) appeared for the plaintiff; James Bonney QC and Paul Stafford instructed by (S Newman & Co) appeared for the defendant association.
