Right of way — Construction — Whether right permitting use of roadway to carry out works to build extension — Whether right permitting relocation of doorway or confined to access point at date of grant — Appropriate remedy for trespass — Claim allowed in part
The claimant and the defendants owned neighbouring properties. A dispute arose over works carried out by the defendants to build an extension. The claimant brought an action against the defendants, seeking declarations, injunctions and damages for trespass. Issues arose as to, inter alia, whether the defendants had any legal right to park on, or to use, a roadway belonging to the claimant to carry out the building works, or to create and use a new front door.
Under the relevant conveyance, the defendants enjoyed a right of way, both vehicular and pedestrian, over the roadway in connection with the use of their property as a private dwelling-house, and for the purpose of carrying out repairs and maintenance. The right was subject to the payment of a contribution to the upkeep of the roadway. The claimant submitted that the right of way was limited to the original doorway, arguing that the physical layout at the date of grant should determine the point of access.
Held: The claim was allowed in part.
1. Since none of the works was a work of repair or maintenance, the use of the roadway to carry them out would constitute a trespass in the absence of consent from the claimant. On the evidence, the claimant had consented to the use of the roadway for some of the works. In respect of the others, it would have been inappropriate to grant an injunction ordering their removal because the consequences of doing so would be disproportionate to the damage suffered as a result of the use of the roadway. There was no damage to the claimant’s property, and the use of the roadway had been comparatively slight. Accordingly, damages would be an adequate remedy.
2. The question of the new front door was one of construction in each case as to whether a right of way gave access to every part of the dominant tenement or only to a particular point of access within it: Pettey v Parsons [1914] 2 Ch 653 applied. The case law did not establish any rule of construction to the effect that the physical circumstances extant at the date of the grant should be the determining factor: St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1975] 2 EGLR 115, Charles v Beach unreported 1 July 1993 and Mills v Blackwell unreported 15 July 1999 considered. In the present case, the wide terms of the right of way, extending as it did along the length of the roadway, coupled with the obligation to contribute to repairs, pointed strongly to the defendants having a right of way exercisable along the entire frontage of their property. They were entitled to use the roadway to obtain access to their property at any point at which such access could reasonably be obtained. The limited nature of the right to use the roadway to carry out works did not limit the nature and extent of that right of way, although it might prevent the defendants from creating new access points if they were unable to do so without the use of the roadway for construction purposes and consent had not not given for that purpose.
Michael Driscoll QC and Kevin Leigh (instructed by Lucas McMullan Jacobs, of Leyton) appeared for the claimant; Derek Wood QC and Marc Dight (instructed by Teacher Stern Selby) appeared for the defendants.
Sally Dobson, barrister
