Heslop v Bishton and others

  Judgment HHJ David Cooke : 1.                  Mr Heslop, appearing in person, appeals against the order of District Judge Dowling made on 2 July 2008 granting summary judgment for the respondents on their counterclaim and making declarations that the erection by Mr Heslop of a brick wall and pillar (being one side of a gateway) constituted a substantial interference with a right of way enjoyed by the respondents, and  further that as long as the obstruction subsisted the respondents would be allowed to pass on to land of Mr Heslop not subject to the right of way, in order to make effective use of the gateway. 2.                  It is common ground that the gateway cannot be effectively used by means of the existing right of way.  Mr Heslop’s point is not that the respondents should not be able to use the gateway, but that they already enjoy a legal right (referred to as a right of deviation) to go outside the existing right of way on to his other land in order to do so, and that in the circumstances the existence of this right to use what he referred to as “the substituted right of way” means that there is no substantial obstruction to the original right of way at all.  He also says, somewhat inconsistently, that it was wrong of the District Judge to make a declaration as the existence of this substituted right of way. 3.                  The dispute concerns a passageway to the side of the appellant’s property, number 39 Crowther St Wolverhampton.  Crowther Street runs from west to east, and number 39 is on the south side.  It is part of an estate of houses developed on land originally owned by W. G. Sherwood, and the respondents, who were the fourth defendants to the original claim, are the present trustees of Mr Sherwood’s estate and the successor in title to the freehold interest in this housing estate, or such of it as remains since, it would appear, the leasehold owners of most of the houses have exercised their right to acquire their freeholds.  This appears to be the case in respect of the appellant’s property, and of the three houses immediately to its west (numbers and 33, 35 and 37) but the respondents retain the freehold ownership of number 31. 4.                  There is a gap between number 39 and number 41, about 8 feet wide, referred to as “the passageway”, and this too remains in the freehold ownership of the respondent trustees.  Behind each of the houses (i.e. to the south of them) numbers 31 to 39 there originally ran a right of way (if the appellant’s measurements are correct it was some 41 inches wide), which the householders could use to go to and from the passageway.  The freehold land owned by the respondents forming the passageway extends not just to the depth of the original house, but also the width of the right of way along the back of the houses, so that anyone following the right of way along the back of the houses would join the passageway at the southeastern corner of number 39, passing from west to east into the passageway strip, and once in the passageway strip, have the right to pass over the full eight-foot width between the houses and 41 inches to the rear of them. 5.                  The title to each of the houses includes not only the area immediately to the south of it over which the right of way runs, but a further garden area to the south of the right of way.  This has the effect, which it appears that Mr Heslop does not find satisfactory, that his garden is effectively separated from his house by the right of way.  Mr Heslop does however have the benefit of a wider garden than the other plots, since his garden extends to the area to the south of the passageway strip, over its full width, giving him an “L” shaped plot. 6.                  In 1985, the owners of number 37 and number 39 wished to extend their houses by building at the rear over the previous right of way.  A deed was entered into by all the relevant title holders by which the right of way was diverted to the south a distance (again assuming the appellant’s measurements are correct) of some 55 inches to make room for the extension.  The revised right of way, as marked on the plan attached to that deed, passed behind the new southern wall of the two houses over a strip of land again (according to the appellant’s measurements) 41 inches wide and then continued in an easterly direction past the new southeast corner of number 39, but not for the whole width of the passageway, only half of it (about 4 feet).  The obvious intention is that anyone using the new right of way would be able to walk eastward past the corner of the building of number 39 and then turn north to go through the passageway.  The extension of the right of way for 4 feet past the building would make this eminently possible. 7.                  Before coming onto the main point argued by Mr Heslop, I will deal with some subsidiary points that he raised. One possible difficulty is that since the passageway strip owned by the respondents extends only 41 inches behind the original rear building line but the new right of way has been displaced some 55 inches, there appears to be a gap of some 14 inches between the two.  Although Mr Heslop apparently took a point on this before the District Judge, the District Judge said that he was satisfied that it could not have been the intention in creating the new right of way that there should be what he referred to as a “ransom strip” between that and the passageway over which there was no right of way.  Before me, Mr Heslop accepted that there was no such ransom strip and that the right of way granted extended to the eastern end of the new route marked on the plan attached to the 1985 deed (i.e. half the width of the passageway), and northward to adjoin the passageway strip itself. 8.                  Mr Heslop sought to rely on a point which he accepted had not been argued before the District Judge, namely that the exercise of the right of way was subject to payment of a service charge, and that he had sent the respondents an invoice for £76 in respect of his alleged cost of removing waste deposited on the right of way, which he asserted he was entitled to recover under this provision but they had refused to pay.  Before me he did not however contend that, if he was right on this, failure to pay this amount on demand had extinguished the right of way, only that it could not be exercised until payment was made. It appears however that he has previously suggested a greater effect; his skeleton argument for instance saying that the respondents were ‘disentitled to the benefit of the 1985 deed’. Mr Hansen objected to this point, in my view rightly, on the basis that it had not formed part of Mr Heslop’s case before the District Judge.  In any event, given that Mr Heslop’s point (as he now puts it) taken at its highest is that the respondents’ right of way continues to subsist and could be exercised upon payment of the £76 there could not in my judgment be any sensible objection on that ground to the District Judge making an order declaring the extent of that right. 9.                  The alleged obstruction arises in this way.  Mr Heslop has built a wall and pillars to make a gateway, on his land immediately to the south of the passageway strip.  One wall extends eastward from the wall of number 39, terminating in a pillar, and the opposite wall extends westward from the boundary of number 41, again terminating in a pillar.  The gap between the two pillars forms a gateway approximately 35 inches wide, centred on the centre line of the passageway strip. 10.              The District Judge found that the wall and pillar extended from the southeast corner of number 39 for a distance of approximately 32 inches.  Given that the right of way only extends 48 inches past that corner, anyone using it to enter the passageway strip can only do so over the final 16 inches, or about half the width of the gateway.  This he found amounted to a substantial obstruction of the right of way for the ordinary purposes for which it was intended, citing as an example the inability of the resident to manoeuvre a wheelie bin (which is some 22 inches wide) through a 16 inch space. 11.              Mr Heslop referred me to a number of cases in which the owner of land over which a right of way had been granted erected a gate across the right of way, and this was held not to be a substantial interference provided that the gate was either left open, or a key was provided to the owner of the right of way.  In my judgment, these cases do not assist Mr Heslop; they all depend upon the court having found that the original right of way could continue to be used with equal convenience notwithstanding the existence of the gate.  Here, as is plain from the facts found by the district judge (none of which are in dispute), that is not the case. 12.              The principal point arising on the appeal is this.  Mr Heslop accepts that, looking only at the extent of the right of way granted by the 1985 deed, the wall and pillar that he has constructed have prevented the effective use of that right.  However, he says that anyone using the right of way is not in practice constrained to go through only 16 inches of the gateway but can use the full width of it by stepping on a small piece of his land to the east of the existing right of way.  He referred me to Selby v Nettlefold (1873) LR Ch App 111 as authority for the proposition that where the owner of land over which a right of way exists obstructs that right of way, and the obstruction cannot easily be moved, a person entitled to the benefit of the right of way may deviate round the obstruction, using other land owned by the owner of the servient tenement.  By using this right of deviation, he says, a person wishing to enter the passageway can use the whole width of the gateway and gain access in a manner which is equally convenient to the use of the right of way formally granted. 13.              Mr Heslop refers to the fact that the District Judge accepted that the right of deviation exists, and relied on it to make the declaration that he did at paragraph 4 of his order.  His complaint is that the District Judge should have held that given the existence of the right of deviation, there was no actionable interference with the right of way at all.  As he put it “my whole case is that the right of way includes not just the original way but also the substituted path” 14.              This is an issue of law on which there appears to be no direct authority.  Mr Heslop, who as the District Judge observed has researched this area of the law considerably, referred me to paragraph 9-79 of Gale on Easements and particularly the final sentence which reads as follows “in the case of a minor realignment of a road in the course of its improvement which did not cause any overall restriction on its use, it being accepted that the party entitled to a right of way would be entitled to free and unrestricted access over the realigned road, the court declined to order either an injunction or damages in lieu, thus rendering the question whether there had been an actionable interference academic”, and the case referred to, Crane Road Properties LLP v Hundalani [2006] EWHC 2066 (Ch). 15.              In fact, it appears that in that case the judge did not find that the right of way could only continue to be used in a manner as convenient as before by passing over some land made available by realigning the road. In the following passage he appears to hold that the works complained of could not in any event amount to an actionable interference: “If the answer to issue 6 is no, did the construction of the footpath [constitute] an actionable infringement of the right of way? Despite my conclusion to issue 6, the point having been argued at length and with the benefit of a site visit, I should answer this question hypothetically. [Issue 6 related to whether the appellant had consented to the construction of the footpath] In my judgment it did not. I regard Mr Hundalani’s concerns over the minor realignment of the roadway as exaggerated, having had the advantage of the site visit … The professed ‘kink’ in the road was barely perceptible on my site visit. If one projects a straight line north from the western verge of the Hundalani roadway the foot path barely encroaches at all. … There has in my judgment been no interference whatever in the Hundalanis current use of Crane Road. It has never been said that any vehicles using the road have been impeded or inconvenienced in any way.” 16.              The judge then went on to hold that even if there had been an actionable interference with the right of way (and even if the appellant had not consented), given the availability of the realigned road he would not have granted any remedy by way of damages or injunction. 17.              At its highest, therefore, it seems to me that this case goes no further than saying that in particular circumstances where the interference with a right of way has not caused the appellant to lose anything of value, the court may decline to grant a remedy in respect of the interference.  It does not go so far as to say that the right has not been infringed at all. 18.              The more relevant section of the paragraph from Gale referred to is in my judgment the preceding part, which reads as follows: “The servient owner has no right to alter the route of an easement of way unless such a right is an express or implied term of the grant of easement or is subsequently conferred on him.  In exceptional circumstances the court might however, refuse injunctive relief, as it did in [Greenwich NHS Trust v London & Quadant Housing Association [1998] 1WLR 1749] where the realignment improved road safety, the dominant owners had failed to object and the realignment was necessary to achieve an object of substantial public and local importance.  The court left open the question whether, in the circumstances, the realignment amounted to a substantial interference with the easement such as to the actionable.” 19.              In the Greenwich case, the appellant NHS trust wished to redevelop a hospital site, planning permission for which depended upon realigning an access road so as to make a more satisfactory junction with the main road. It does seem clear from the report that this realignment would be sufficiently extensive to involve users of the new road passing over land which was not within the boundaries of the existing right of way, and correspondingly being prevented from passing over land which was within those boundaries. Although the proposals had been canvassed with the public without any active opposition, it could not be said that all of the holders of the rights of way had consented to them.  The NHS trust was not able to proceed unless it had effectively eliminated the possibility that one or more of the holders of the right of way could seek to prevent the works by applying for an injunction.  Lightman J held that in the circumstances of the case it was appropriate to grant a declaration that the court would not grant injunctive relief to any such opponent, who would therefore be restricted to a claim for compensation for any loss shown to have been suffered. 20.              In the course of his judgment, Lightman J said this: “(a) Right to realign In my view, a servient owner has no right to alter the route of an easement of way unless such a right is an express or implied term of the grant of the easement or is subsequently conferred on him. This view accords with the decision in Deacon v SE Ry (1889) 41 LT (NS) 377. In that case the question arose in respect of an easement of necessity and North J followed earlier authorities which were to this effect. Since easements of necessity arise under an implied grant (see Nickerson v Barraclough [1981] 1 Ch 426, [1981] 2 All ER 699), on principle the same rule should apply in case of all grants of easements. Whilst there appears to be no English authority directly in point, this was held to be the law by the New Brunswick Court of Appeal in Gormley v Hoyt (1982) 43 NBR (2d) 75. (b) Substantial interference The argument has been addressed to me that, even if the servient owner has no right to realign, nonetheless such a realignment will not constitute an actionable interference with the easement if the realigned route is equally convenient, and that this a fortiori in cases where no grounds exist for any reasonable objection to the realignment. It is well established that, if and so long as the way follows the realigned route, the dominant owner’s easement entitles him to use that route (consider Selby v Nettlefold (1873) LR 9 Ch App 111). I feel considerable sympathy for this submission. For insistence on an existing route may (as in the present case) frustrate a, or indeed any, beneficial development or use of the servient land, whilst protecting no corresponding advantage of, and conferring no corresponding advantage on, the dominant owner; and there is (unfortunately) no statutory equivalent in case of easements to the jurisdiction vested by statute in the Lands Tribunal in case of restrictive covenants to modify the covenant to enable servient land to be put to a proper use. There is something to be said for the approach that the test should be whether the dominant owner “has really lost anything” by the alteration: (compare the language of Cockburn CJ in Hutton v Hamboro (1860) 2 F&F 218 at 219 in the context of a case raising the question whether the dominant owner could narrow the entrance to a right of way). On the other hand, it may be said that the dominant owner loses the property right to the easement over the original way. I do not have to give a final decision on this difficult and far-reaching question in view of my answer to the third question, and in the circumstances in the absence of the assistance of argument on both sides of the question, I do not think it right to do so.” 21.              It is clear therefore that where a right of way has been obstructed, the existence of an equally convenient alternative right of way may affect the remedy available to the holder of the obstructed right. This is not surprising; remedies such as injunctions are equitable and matters of discretion.  The court might take any relevant circumstances into account in deciding whether or not to grant an injunction, and the practical impact on the dominant landowner of the interference, bearing in mind any other rights he has, is obviously relevant. The question left open by Lightman J, which Mr Heslop seeks to raise in this case, is whether in addition to affecting his remedy it may also affect his underlying right itself, effectively extinguishing it.  It is difficult to see how a right of way can be said to exist at all if its use has been prevented by obstruction, but the obstruction is found not to be in principle actionable. 22.              In order to reach a conclusion on this, I start from the proposition that the servient landowner cannot unilaterally alter the route of a right of way (subject to the exceptions mentioned by Lightman J).  The alteration of the route of a right of way seems to me to involve two processes, i)                    the grant of a right of way over a new route, and ii)                   the extinguishment of former rights of way over the existing route so that the dominant landowner is compelled to use the new route. 23.              It seems to me that there can be no objection on the part of the dominant landowner to the first of these two steps.  Although rights of way can be and often are granted by an instrument to which both the dominant and servient landowners are party, it is not necessary that they should be.  A legal easement is created by deed of grant executed by the servient landowner, and there is no requirement for any consideration or reciprocation from the owner of the dominant land.  Thus, there is no reason in principle why the owner of land which is subject to a right of way over route A should not unilaterally execute a deed in favour of all the persons entitled to the benefit of that right of way, conferring on them additionally a right of way over route B.  So far, the beneficiaries of this grant are not obliged to make use of the right given to them and have not been subjected to any liability by virtue of its creation.  Their consent has not been required, and although no doubt they could individually or collectively release the right granted, unless and until they do so it would subsist. 24.              It follows that any legal obstacle to re-routing a right of way lies in the second of two processes, i.e. the extinguishment of the right of way over the previous route. Indeed this appears to be exactly what happened in the Deacon case; a lessee was granted a right of way that was not initially defined in the lease, but came to be established on the ground.  The lessor subsequently provided a new means of access, which the lessee occasionally used.  However, when the lessor subsequently came to bar the use of the old route, forcing him to use the new one, the lessee was held entitled to an injunction to prevent the interference with his established right.  No consideration was entered into of the relative convenience to the lessee of the two routes; he was entitled to insist upon the use of the route first granted to him. 25.              It follows therefore necessarily in my view from the rule that the servient owner cannot unilaterally reroute a right of way that he cannot by provision of a new right of way prevent acts of obstruction of the old route from being in principle actionable.  The availability of the new route goes to remedy, but does not extinguish the original right.  Where an equally convenient alternative route is available, the court may decline to grant an injunction to enforce use of the original route, but there is no reason in principle why it should not grant other relief, such as a declaration as to subsistence of the right or, as was contemplated in the Greenwich case, compensation. 26.              The concern expressed by Lightman J as to the possible frustration of the beneficial use of land in the absence of a mechanism for extinguishing rights of way can, it seems to me, be dealt with satisfactorily by the appropriate selection by the Court of the remedies which it is prepared to grant in the circumstances of a particular case, as (if I may respectfully say so) exemplified by his own decision. 27.              The position seems to me to be even stronger where the proposed alternative route is available only by a legal mechanism which is less secure than the original. The right of deviation recognised in Selby v Nettlefold  is clearly an equitable right, not a legal one.  It was enforced against a subsequent purchaser of the servient land, but only because he bought with notice of its existence.  It would be highly unjust if an existing legal right were to be extinguished by the creation of an equitable right, only for the equitable right to be defeated in some way leaving the dominant landowner with no right at all. 28.               It was not suggested in Selby v Nettlefold itself that the availability of the right to deviate extinguished the original right of way.  The right of way in that case was along a canal towpath, and it was obstructed by building a bridge over the canal which blocked the towpath entirely, forcing the users of the canal to deviate around the bridge to rejoin the towpath on the far side.  Those users acquiesced in this arrangement for a number of years, leading the court to remark that it may now be very difficult for them to enforce the removal of the bridge by injunction. It was thus more important to them that the court should protect in their favour the right to deviate around the bridge.  The continued existence of the original right of way was clearly recognised however; the order made to prevent the obstruction of the substituted route was limited in time so as only to have effect whilst the obstruction of the original route remained. 29.              In the present case, Mr Heslop does not maintain that he has created a legal right of way over the additional parts of his land which would be required to make effective use of the gateway.  The comparatively insecure position that the respondents would be in if it were held that the obstruction of their original right of way was not actionable is in fact emphasised by the stance that he has taken.  He told me that, in an attempt to resolve matters, he had offered to recognise formally the respondents’ rights over the substituted route, but the offer that he made was not for the creation of a permanent legal right of way but to grant a mere licence expressly limited to 10 years duration which would leave the respondents position uncertain at the expiry of that period, or possibly earlier if he were to purport to revoke it.  Further, as I noted at the outset, although he accepts and relies upon the existence of the equitable right of deviation, he resists the District Judge’s order declaring the existence of that right. The effect of the absence of such a declaration could only be to make the respondents position apparently less secure, for instance in the eyes of a potential purchaser who may be unwilling to accept the possible uncertainty and expense of enforcing the equitable right all over again. It is clear that since this dispute has arisen Mr Heslop has taken a number of steps to seek to undermine the rights of the respondents that he now professes to recognise (the ambiguous contention as to the effect of failure to pay the service charge he demanded and the proposal apparently to limit the respondents rights to a ten year licence being but two of them), making it in my judgment entirely  appropriate for the respondents to seek the declaration that they did and for the court to grant it. 30.              In my judgment therefore the District Judge was right to make both the declarations that he did, and this appeal must be dismissed. 31.              I will list a short hearing at which this judgment can be handed down.  If the parties are agreed as to the terms of the order that will follow, there need be no attendance.  If further time is required to deal with consequential matters, the party should submit an agreed time estimate to my clerk and, if that time cannot be accommodated at that hearing, a further one will be arranged.