Forestry Commission for England and Wales v Omega Pacific Ltd
Claimant granted right of way – Defendant seeking to control and restrict access to land – Construction of express grant of right of way in lease – Claim allowed
The defendant was the freehold owner of the servient tenement of land, which had previously been owned and used by the Ministry of Defence as a munitions store. In December 1996 the Forestry Commission (the claimant) entered into a lease with the Secretary of State for Defence. The second schedule of the lease set out the rights of the claimant to be: “The right in common with the lessor and all others entitled to the like right of way over and along the roads at all times, with or without vehicles workmen and equipment”. The defendant contended that the site remained a dangerous one and that access should be controlled, by requiring: (i) a prior appointment to be made with the defendant before the exercising of the rights of way in the lease; (ii) the names of the persons exercising the rights to be divulged to the defendant; and (iii) locked gates across the right of way, without providing the claimant with a key. The claimant sought a declaration as to the proper construction of the right of way, granted by the second schedule of the lease, and sought an injunction preventing the defendant obstructing the right of way.
Held: The declaration was granted but the injunction was refused.
Claimant granted right of way – Defendant seeking to control and restrict access to land – Construction of express grant of right of way in lease – Claim allowed The defendant was the freehold owner of the servient tenement of land, which had previously been owned and used by the Ministry of Defence as a munitions store. In December 1996 the Forestry Commission (the claimant) entered into a lease with the Secretary of State for Defence. The second schedule of the lease set out the rights of the claimant to be: “The right in common with the lessor and all others entitled to the like right of way over and along the roads at all times, with or without vehicles workmen and equipment”. The defendant contended that the site remained a dangerous one and that access should be controlled, by requiring: (i) a prior appointment to be made with the defendant before the exercising of the rights of way in the lease; (ii) the names of the persons exercising the rights to be divulged to the defendant; and (iii) locked gates across the right of way, without providing the claimant with a key. The claimant sought a declaration as to the proper construction of the right of way, granted by the second schedule of the lease, and sought an injunction preventing the defendant obstructing the right of way.
Held: The declaration was granted but the injunction was refused.
The express grant of the right of way was not limited in the way that the defendant contended it should be. The restrictions it sought to impose were incompatible with the clear term in the second schedule of the lease, “at all times”. Furthermore, such restrictions constituted a substantial interference with the right. However, in the exercise of the court’s discretion, it was unnecessary to grant the claimant an injunction, as there was no evidence that the defendant would act in an unlawful manner.
Mark Wonnacott (instructed by Eversheds, of Cardiff) appeared for the claimant; Paul de la Piquerie (instructed by Lawrence Jones) appeared for the defendant.
Sarah Addenbrooke, barrister
