It is trite law that an alleged obstruction of a right of way is not actionable unless it amounts to a substantial interference with the exercise of the right. Since the question is one of degree, decided cases are usually found to be illustrative rather than determinative. Not so the decision of Blackburne J in B&Q plc v Liverpool & Lancashire Properties Ltd [2001] 15 EG 138, which has been reviewed by Sandi Murdoch in
Before the court was a problem that may well be festering on any number of industrial and retail parks that feature a common road or service area for use by delivery vehicles. Few would argue that such a facility should, ideally, be large enough to allow vehicles to wait when necessary, and to do so without making it unduly difficult for other vehicles to manoeuvre round them.
In B&Q, the claimant’s lease of a warehouse unit contained an express grant of a right for delivery vehicles “to pass and re-pass” over roads and access ways, which included a service area possessing the desirable features mentioned above. The defendant landlord announced a proposed extension of one of the units, which would lead to a corresponding reduction of the service area. It was plain that such a reduction would take away the waiting and manoeuvring advantages, leaving the claimant with no more than a right of passage. The claimant sought an injunction.
The defendant contended that no substantial interference was threatened because the claimant would still be left with an area sufficient for the “reasonable” enjoyment of its right of passage. Rejecting that argument, it was held that the proper question to ask was whether it was reasonable for the claimant to insist upon the entirety of the benefits for which he had bargained. On the facts of the case, such insistence was plainly reasonable, and would have been so even if the claimant’s unloading routine had not depended upon drivers being able to wait their turn in the service area.
The case has little bearing upon prescriptive claims, and the judge declined to rule upon whether vehicles could lawfully wait for the time required by the claimant’s “one in, one out” unloading policy. However, it was observed that some waiting was “inescapable”.
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It is trite law that an alleged obstruction of a right of way is not actionable unless it amounts to a substantial interference with the exercise of the right. Since the question is one of degree, decided cases are usually found to be illustrative rather than determinative. Not so the decision of Blackburne J in B&Q plc v Liverpool & Lancashire Properties Ltd [2001] 15 EG 138, which has been reviewed by Sandi Murdoch in Turn to account Estates Gazette 25 November 2000, p176.
Before the court was a problem that may well be festering on any number of industrial and retail parks that feature a common road or service area for use by delivery vehicles. Few would argue that such a facility should, ideally, be large enough to allow vehicles to wait when necessary, and to do so without making it unduly difficult for other vehicles to manoeuvre round them.
In B&Q, the claimant’s lease of a warehouse unit contained an express grant of a right for delivery vehicles “to pass and re-pass” over roads and access ways, which included a service area possessing the desirable features mentioned above. The defendant landlord announced a proposed extension of one of the units, which would lead to a corresponding reduction of the service area. It was plain that such a reduction would take away the waiting and manoeuvring advantages, leaving the claimant with no more than a right of passage. The claimant sought an injunction.
The defendant contended that no substantial interference was threatened because the claimant would still be left with an area sufficient for the “reasonable” enjoyment of its right of passage. Rejecting that argument, it was held that the proper question to ask was whether it was reasonable for the claimant to insist upon the entirety of the benefits for which he had bargained. On the facts of the case, such insistence was plainly reasonable, and would have been so even if the claimant’s unloading routine had not depended upon drivers being able to wait their turn in the service area.
The case has little bearing upon prescriptive claims, and the judge declined to rule upon whether vehicles could lawfully wait for the time required by the claimant’s “one in, one out” unloading policy. However, it was observed that some waiting was “inescapable”.
