Excessive use of an easement constitutes a trespass for which the appropriate remedy is an injunction, regardless of whether the trespass causes harm.
The Central London County Court has granted an injunction to restrain excessive user of easements in The Ridgeway (Oxshott) Management Ltd v McGuinness and another [2023] EW Misc 9 (CC).
The case concerned an estate of 47 houses in Oxshott, Surrey, built in the 1930s.
The defendants owned Birch Mead and had obtained planning permission to demolish the property and build two houses on the plot. They intended to live in one and for Mrs McGuiness’s father to live in the other.
The roads and verges on the estate were owned by ROML, in which all homeowners were shareholders.
ROML’s aim was to retain the overall character and charm of the estate. On their acquisition of the property in 2013 the defendants entered into deeds of easement and covenant with ROML.
Under the easement they were granted rights of way over the estate roads and to use service media in connection with the use of the land as a single private dwelling house.
ROML would maintain the estate roads and services and the defendants covenanted to pay their share of annual expenditure, to maintain the verges and not to block, obstruct or park on the estate roads.
ROML sought declarations that the development was not permitted under the easement and an injunction preventing the works.
The defendants’ preliminary challenges failed. The restriction in the deed of easement was not void for public policy reasons. It would in fact be against public policy to prevent landowners from freely determining rights granted over their land.
ROML’s claim was to restrain excessive user of easements, which constitutes a trespass, and so it was not necessary to plead a claim in trespass. Use of the roadways and service media for two houses would be a breach of the easements.
Was ROML entitled to an injunction or should the court award damages in lieu? The court decided that refusal of an injunction would undermine the system of easements which had been developing on the estate over the years.
Damages rather than an injunction would seriously and adversely impact a significant aspect of the raison d’être of ROML. The strength of views held by residents showed how highly valued the “one plot, one house” principle was.
The defendants had made their planning application with their eyes open to the binding nature of the easements and the rule against infilling. The grant of an injunction was appropriate.
Louise Clark is a property law consultant and mediator
