Neighbours — Boundary — Right of way — Unlawful interference — Track running between two properties — Claimants asserting right of way — Defendant obstructing right of way — Whether claimants establishing right of way — Whether defendant’s conduct actionable interference — Claim allowed
The claimants were the freeholders of a property and adjoining meadow. The defendant was the freeholder of a neighbouring property. A dispute arose regarding a track that ran between their properties. The track was unregistered land and its ownership was unknown. Both parties claimed a right of way over the disputed part of the track that came directly off the road upon which their properties were located and that was around 20m long.
The defendant’s predecessors in title had owned the claimants’ property and the meadow before the claimants bought those in 2001. The only access to the claimants’ property was along the track, which ran along the north and north-west boundaries of the property until it reached the northern part of the meadow and then continued across the meadow for around 40m, where a vehicle gate provided access to the rear of the claimants’ property.
Prior to the claimants’ purchase, the defendant’s predecessors had erected a fence between the two properties. It was agreed that this would mark the boundary and that the claimants would be responsible for its upkeep. The fence had been erected in such a way that it did not provide access to the defendant’s predecessors’ land and they did not seek to use it. They also made a statutory declaration that, in 1981, they had established the track as a means of vehicular access to and from the meadow and that their right to do so had never been questioned. In 2002, the defendant purchased his property and claimed a right of way over the track, erecting gates and gate posts and other obstructions that allegedly interfered with the claimants’ use of the track.
The claimants applied to the court for a declaration that: (i) their property enjoyed a legal right of way over the track; and (ii) the defendant’s conduct constituted an actionable interference with their enjoyment of that right.
Held: The claim was allowed.
The claimants had established their legal entitlement to use the right of way, but the defendant had no similar right.
Whether a right of way had been interfered with was a question of fact, having regard to all the circumstances of the particular case. The erection of a gate across the right of way did not necessarily amount to a sufficiently substantial interference to that right of way as to be actionable. However, the motives of the party whose actions were alleged to constitute an actionable nuisance were relevant to the question of whether there was such a nuisance: Pettey v Parsons [1914] 2 Ch 653; Geoghegan v Henry [1922] 2 IR 1; and Saint v Jenner [1973] Ch 275 considered.
In the light of the defendant’s intimidating and unreasonable conduct, the claimants were entitled to the declaration sought and to a mandatory injunction ordering the defendant to remove the gates, the gate posts and fencing within 10 days of the formal order to do so.
The claimants were entitled to £2,000 damages for loss of amenity. Furthermore, the defendant’s persistent intimidatory and unpleasant conduct would be reflected in an award of aggravated damages of £4,500: Scutt v Lomax (2000) 79 P&CR D31 and Bryant v Macklin [2005] EWCA Civ 762 distinguished.
There was no reason why aggravated damages should not be awarded for interference with a right of way, as opposed to trespass to land, since the two basic conditions for an award of such damages had been satisfied. These were: exceptional or contumelious conduct or motives on the part of the defendant and the mental distress, injury to feelings and heightened sense of injury or grievance that the claimant sustained as a result of the defendant’s conduct: Appleton v Garrett [1997] 8 Med LR 75 applied.
Nathan Wells (instructed by Wilsons, of Salisbury) appeared for the claimants; the defendant did not appear and was not represented.
Eileen O’Grady, barrister
