Is the owner of land that is subject to rights of way obliged to allow a degree of tolerance for wide loads, or is he entitled to build right up to the very edge of a track over which rights of way have been granted?
The litigation in Oliver v Symons [2012] EWCA Civ 267 illustrates that, in the absence of specific provisions limiting use to the width of a roadway, or stating the extent to which users will be entitled to make use of a wider area, the court may be forced to opine.
The judiciary has reached different conclusions in previously reported cases. In VT Engineering v Richard Barland (1968) 19 P&CR 890, the court tentatively suggested that a servient owner might have to allow some degree of tolerance for wide loads and in White v Richards (1993) 68 P&CR 105 the court allowed the grantee of a right of way an overhang of a foot or so. However, in Minor v Groves (2000) P & C R 136 the court took the view that the grantee of a right of way would have no cause for complaint if the landowner were to build right up to his boundary, thereby restricting use of the right of way to the precise width of the roadway.
More recently, in Genn v Mason (unreported 29/11/2011), the county court held that a right of way included a right to drive on the verges where it was reasonably necessary to do so and in Zieleniewski v Scheyd [2012] EWCA Civ 247, the Court of Appeal upheld a complaint about the obstruction of a prescriptive right of way to a field following the erection of a wall and fence that interfered with the exercise of a right of way.
In Oliver, the Court of Appeal differentiated between swing space and verge space. The court was clearly concerned that the claim to swing space, in particular, would sterilise corridors of land extending significantly beyond the boundaries of the track. It favoured the analysis in Minor, and ruled that there was no evidence to suggest that the users were entitled to swing space, or to use the grass verge. Consequently, it rejected their complaints that the landowners had interfered with their rights of way by installing gates that were too narrow to accommodate some agricultural machinery easily or at all.
The court was careful to state that its decision does not mean that a right of way can never extend beyond the physical dimensions of a track. However, there would need to be cogent evidence – for example, of use preceding the grant or of the purpose for which rights of way were granted – to persuade the court that it would be wrong to interpret the rights narrowly.
Practitioners can help reduce the possibility of claims that might sterilise land on either side of a roadway by specifying the precise extent of any rights of way that are being granted and by reserving any rights – for example, to erect structures or install gates – that landowners think they might need. If the parties fall out, mediation is quicker, cheaper and less bruising than battling it out in court.
Allyson Colby is a property law consultant
