A prescriptive easement carries with it a right of repair but not of improvement.
In Mark Leonard Lamport and others v Stanley Thomas Jones [2023] EWHC 667 (Ch) the High Court has dismissed appeals from a decision concerning the width of a prescriptive right of way and the right to carry out repairs.
The dispute concerned a right of way over a short rough track of around 155m at the southern boundary of the defendant’s land at Y Wern. The defendant admitted that the claimants had a prescriptive easement over the track for all purposes for the benefit of Blaen Warn farm, a small strip of land between Blaen Wern and Y Wern and for freehold land and property known as Golygfa.
The principal dispute was as to the width of the easement. The judge found that, from before 2000, tractors and delivery lorries taking building materials for sheds at Blaen Wern and for the construction of the house at Golygfa, with a wheelbase of up to 2.5m, were likely to have used the track on a regular basis.
The judge ordered that the width of the right of way was 2.5m at ground level, with the width above ground being equal to the distance between the embankments, provided any vehicle exercising the right of way did not touch the sides of the embankments. In the event of damage to the embankments which obstructed the right of way, the claimants were entitled to enter the defendant’s land to carry out repairs. They could also cut back hedges and trees encroaching onto the track to the extent reasonable to allow the right to be exercised. Both parties appealed.
The claimants argued that the judge had erred in refusing to allow them to undertake repairs to the track to enable it to be used to the full 2.5m and to reverse the narrowing effect of erosion by rainwater. Their proposal was plainly improvement and not repair. The judge did not find that the right of way required the track to be at least 2.5m in width along its entire length but that the prescriptive easement was established by the passage of vehicles with a wheelbase width of up to 2.5m. Repairs carried out during the trial had remedied any erosion by rainwater. Attempts by the defendant to limit repairs to the track only, also failed. The judge was entitled to direct that the claimants could repair the embankments provided that the damage obstructed their use of the right of way.
Louise Clark is a property law consultant and mediator
