Right of way – Intererence – Injunction – Dispute arising in respect of claimant’s right of way over strip of land owned by defendant – Whether right of way extending across whole strip – Whether width limited to physically discernible track – Whether claimant entitled to damages and mandatory injunction for defendant’s substantial interference with right of way – Claimant Claim allowed in part
The claimant’s family had been farming land at Dodecote Grange in Childs Ercall near Market Drayton in Shropshire since 1865. A dispute arose as to the existence, location and width of a right of way over a strip of land which ran in a south to north direction with, on its western side certain farm buildings and on its eastern side an embankment. The claimant argued that a right of way had been granted across the whole of the strip under a Deed of Gift dated 2 April 1979.
The claimant contended, among other things, that the parties had intended the right of way to be sufficiently wide to accommodate agricultural machinery in the future, regardless of how big such machinery might become and that it included a right to overhang, swing and manoeuvre vehicles and equipment over the verges. He also complained that the defendant had altered the route of the track and constructed and erected items which obstructed and substantially interfered with the right of way. The claimant sought a mandatory injunction requiring the removal of certain obstructions said to be interfering with the exercise of the right of way.
Property and outbuildings at Dodecote Grange and 29 acres of land, including the strip of land in question, had been sold to the defendant after the date of the 1979 Deed. He wished to incorporate the strip into a new development on his land and argued that the right of way was only across that part of the strip that was a discernible track as at the date of the 1979 Deed.
Held: The claim was allowed in part.
(1) On the evidence, as at the date of the 1979 Deed, there was a clearly discernible physical track which did not extend the whole way across the strip. The right of way was limited to the physically discernible track of no more than 3.75 metres wide. An owner of land was entitled to build right up to the boundary of his land so that building right up to the end of his land did not interfere with a right of way which abutted his land. A dominant owner had no cause for complaint if he was restricted in his user of the way to the exact width of the way. Before the court could consider the possibility of a construction extending the width of a track beyond its physical dimensions, there would need to be cogent evidence that a narrower construction, concentrating on the physical features of the land, would not achieve the intended objective of the parties. In the present case, there was no such evidence. There was plenty of evidence that agricultural machinery could, did and continued to, use the track without difficulty: Minor v Groves [1997] PLSCS 294; (2000) 80 P & CR 136 and Oliver v Symons [2012] PLSCS 107; [2012] P & CR 19 applied.
(2) There was no actionable interference with a right of way if it could be substantially and practically exercised as conveniently after as before the occurrence of the alleged obstruction. The test of an actionable interference was not whether what the grantee was left with was reasonable, but whether his insistence on being able to continue the use of the whole of what he contracted for was reasonable. Provided that what the grantee was insisting on was not unreasonable, the question was whether the right of way could be substantially and practically exercised as conveniently as before; B & Q plc v Liverpool & Lancashire Properties [2001] 1 EGLR 92 applied.
A servient owner had no right to alter the route of an easement of way unless such a right was an express or implied term of the grant of the easement or was subsequently conferred on him. A servient owner could not 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 went to remedy but did not extinguish the original right. Where an equally convenient alternative route was available, the court might decline to grant an injunction to enforce use of the original route but there was no reason in principle why it should not grant other relief, such as a declaration as to subsistence of the right or compensation: Heslop v Bishton [2009] EWHC 607 (Ch); [2009] 2 EGLR 11 applied. Greenwich NHS Trust v London & Quadrant Housing [1998] 1 WLR 1749 applied.
(4) On the evidence, in the present case, the alternative route provided by the defendant was less convenient for the claimant. However, if the defendant was prepared to make changes to ensure that the new route would be just as convenient, and to grant a formal right of way over the new route, the court would be prepared to make a negative declaration fashioned on the Greenwich NHS Trust case That the claimant could have no right to an injunction and should be satisfied by and be restricted to an award of damages in respect of the interference with the right of way.
Caroline Hutton (instructed by FBC Manby Bowdler, of Birmingham) appeared for the claimant; David Taylor (instructed by mfg Solicitors, of Bromsgrove) appeared for the defendant.
Eileen O’Grady, barrister
