The usual remedy for excessive use of an easement is an injunction: see Hamble Parish Council v Haggard [1992] 4 All ER 147. What, though, is the position if the users refuse to desist from such use? Breach of an injunction amounts to a contempt of court and is punishable by imprisonment. However, this may not be a practicable solution if there are too many users and/or they cannot all be identified.
Ashdale Land & Property Co Ltd v Maioriello [2011] EWHC 3296 (Ch); [2011] PLSCS 37 is an important and unusual decision. It concerned the abuse of private rights of way for agricultural use. Following a sale by auction, the new owner of the dominant land used the roadway to transport construction materials and established an unauthorised gypsy caravan site on the dominant land. Lorries, vans and cars visiting the caravan site were driven along the road at speed, throughout the day and night, creating noise and dust and causing damage.
The owner of the roadway obtained injunctions restraining the unauthorised use, which the owner and occupiers of the caravan site ignored. After deciding that committal proceedings were impracticable, and following discussions with the emergency services, the owner of the roadway placed concrete bollards at the entrance to the caravan site.
The gypsies continued to use the roadway to obtain pedestrian access to their caravans and began to obstruct the roadway by parking vehicles. Consequently, the owner asked the court for permission to obstruct all access to the dominant land. He relied on two cases.
In Cawkwell v Russell (1856) 22 LJ Ex 34, the court agreed that it was impossible to separate good from bad use because the dominant landowner was abusing drainage rights by mixing clean and dirty water. It allowed the servient landowner to prevent all use of the easement. In addition, in Bernard v
The judge agreed that an English court would be unlikely to allow a servient landowner to prevent all use of an easement if an injunction restraining any wrongful use would be effective. However, he decided that the only way to prevent the owner and occupiers of the caravan site from trespassing on the roadway in the exceptional circumstances of this case was by obstructing all access to the site.
This remarkable decision is certain to feature in future editions of legal textbooks. However, it will apply only in exceptional cases, where an injunction would not be an effective remedy if, having regard to the interests of all those affected by the proposed steps, such relief is proportionate, just and appropriate. Consequently, landowners would be well advised to seek permission from the court before taking similar steps to prevent the wrongful use of an easement.
Allyson Colby is a property law consultant
