The Law Commission’s report on easements, covenants and profits à prendre highlights two issues that often cause problems for developers. The owner of land over which an easement passes cannot unilaterally realign the route of the easement, and there is no statutory equivalent of the legislation in the case of restrictive covenants that would enable a servient landowner to ask the Lands Tribunal to re-route an easement to facilitate development.
In Heslop v Bishton [2009] EWHC 607 (Ch); [2009] PLSCS 134, the owner of land affected by a right of way built a wall and pillar, which obstructed part – but not all – of the right of way. What remedies were available to the users of the right of way? In order to answer this question, the judge considered the decisions in Selby v Nettlefold (1874) LR 9 Ch App 111 and in Greenwich Healthcare NHS Trust v London and Quadrant Housing Trust [1998] 1 WLR 1749.
The Law Commission’s report on easements, covenants and profits à prendre highlights two issues that often cause problems for developers. The owner of land over which an easement passes cannot unilaterally realign the route of the easement, and there is no statutory equivalent of the legislation in the case of restrictive covenants that would enable a servient landowner to ask the Lands Tribunal to re-route an easement to facilitate development. In Heslop v Bishton [2009] EWHC 607 (Ch); [2009] PLSCS 134, the owner of land affected by a right of way built a wall and pillar, which obstructed part – but not all – of the right of way. What remedies were available to the users of the right of way? In order to answer this question, the judge considered the decisions in Selby v Nettlefold (1874) LR 9 Ch App 111 and in Greenwich Healthcare NHS Trust v London and Quadrant Housing Trust [1998] 1 WLR 1749. Selby established that users of private rights of way are entitled to use another route across the servient land to avoid obstructions placed in their path by the owners of the servient land. The decision in Greenwich Healthcare confirmed that where a right of way is obstructed, the existence of an equally convenient alternative right of way may affect the remedy available to the users. In that case, the court ruled that the users would not be entitled to an injunction to prevent the realignment of the road to facilitate a development of substantial public and local importance. However, the judge ruled that the users might be entitled to damages to compensate them for the interference with their rights. In Heslop, the owner of the servient land claimed that the users of the pedestrian right of way were entitled to walk round the obstruction and argued that the deviation was so minor that there was no actionable interference with the right of way. Indeed, he went so far as to argue that the previous right of way had been extinguished because a right of way cannot exist if its use has been prevented by obstruction and the obstruction is not actionable as a result of the existence of an alternative right of way. The High Court disagreed. The judge ruled that a servient landowner can unilaterally grant a legal easement along an alternative route, but cannot compel the grantee to use it. The availability of the alternative route may affect the remedy awarded by the court, but will not extinguish the original rights. This is also the position where the right to use an alternative route is available as a result of the exercise of a self-help remedy and not from the grant of a legal easement. The Law Commission has suggested that the law on easements should be updated. The property industry awaits the government’s response with interest. Allyson Colby is a property law consultant
