Abuse of a right of way
The usual remedy for excessive or unlawful use of an easement is an injunction. What is the position, however, if, despite the grant of an injunction, some of the users continue to use a right of way unlawfully? Ashdale Land and Property Company Ltd v Maioriello [2012] EWCA Civ 1618 confirms that the courts will be reluctant to authorise total obstruction of a roadway where this would prevent its lawful use by other users.
The dispute concerned a right of way for agricultural use. Part of the land that benefited from the right of way was sold to an individual who divided it into smaller lots for use as a gypsy caravan site. He did so without obtaining planning permission or asking the owner of the roadway to enlarge the right of way to accommodate such use.
The owner of the roadway obtained injunctions restraining any unauthorised use of it, but they were ignored by travellers who had already occupied other parts of the land that benefited from the right of way. After deciding that committal proceedings were impracticable against travellers who could not easily be identified, the owner of the roadway placed concrete bollards at the end of the road to prevent vehicular access to the site. The travellers responded by parking their vehicles along the roadway and walking in and out of the site instead.
The trial judge granted the owner of the roadway permission to obstruct all access to the land that benefited from the right of way. This deprived the buyer of the use of the land that he owned. He could not obtain access to inspect it, or to repair the fencing, or to show it to prospective buyers or tenants wanting to put the land to agricultural use. He argued that the judge had been wrong to grant an injunction that restrained him from the lawful exercise of his rights over the access road.
The Court of Appeal distinguished between the buyer, who had made unlawful use of the right of way for a very short period, and the travellers. The buyer had acknowledged his fault and the judge had not expressed any concern that he might flout any order requiring him to use the roadway lawfully. In addition, it would not be difficult to commence committal proceedings against him, were he to do so.
The court reserved the right to authorise complete obstruction of an easement in extreme cases, where it is impossible to separate lawful and unlawful uses and users show no genuine need to use, or intention of using, the easement for purely lawful purposes. However, the judge’s order had negated the buyer’s property rights indefinitely and the buyer would have to ask the court to modify the order before he could exercise his rights of way for lawful reasons.
Consequently, the court decided to modify the order so that it prohibited use of the access road except in accordance with the terms of the easement granted. However, it did authorise the retention of the bollards until lawful use of the roadway was required (at which point, it might be possible to restrict access with gates, locks and keys).
Allyson Colby, property law consultant
