Right of way — Access restricted to purposes set out in user covenant — Application to discharge or modify user covenant under section 84(1) of Law of Property Act 1925 — Judge holding right of way extending to modified use of land — Appeal dismissed
The appellant’s land included a driveway that served as the sole means of access to the respondents’ adjoining property. That access was the subject of a right of way granted in a 1965 conveyance to the respondents’ predecessor in title “for all purposes in connection with the use of the property authorised by Clause (d) in the Schedule hereto”. Clause (d) limited use of the respondents’ property to “offices and purposes ancillary thereto”.
In 2002, the respondents applied to the Lands Tribunal, under section 84(1) of the Law of Property Act 1925, for the complete discharge of the user covenant in clause (d), or alternatively, its modification, to permit use of the property for holiday letting on a commercial basis and for a health and fitness centre.
The claimant brought proceedings in which he argued that even if the covenant were discharged or modified, the drive could no longer be used for access, since such use would be excessive and outside the scope of the easement granted in the 1965 conveyance. The Lands Tribunal proceedings were stayed, pending a court decision on the correct construction of the easement.
The judge held that the right of way extended to any activity that could lawfully be carried out at the respondents’ premises, so that, if the original covenant were to be modified or discharged, the right of way could be used for other purposes than those contained in clause (d). On appeal, the appellant argued that the decision effectively extended the ambit of the Lands Tribunal jurisdiction, which was restricted under section 84(1) to modification or discharge of restrictive covenants, to varying the terms of a right of way granted in 1965.
Held: The appeal was dismissed.
On a sensible construction of the easement, the right of way reflected the lawful use of the respondents’ property. Where the use of a right of way had been restricted by reference to the use of a property to which it provided access, any alteration to the use of the property would result in a corresponding alteration to the scope of the right of way. If the Lands Tribunal were to decide to discharge or modify clause (d) under section 84(1), the permitted use of the right of way should be altered to reflect the change of character of the property.
Owen Rhys (instructed by Bridge McFarland, of Lincoln) appeared for the appellant; Adam Chambers (instructed by Montlake & Co, of Banstead) appeared for the respondents.
Sally Dobson, barrister
