Right of way: defendant losing appeal given a ‘yellow card warning’

An appeal against a decision concerning the extent of a right of way has failed in Banks v Blount [2022] EWHC 1491 (QB), which will be of interest to those concerned with establishing and enforcing rights of way.   The claimants owned a yard in Stourport-on-Severn consisting of buildings and land together with a right of way (ROW) from the main road across the defendant’s land to the yard.  The ROW was granted in 1992 when the yard was sold off. The width of the ROW was not specified and led to a dispute between the defendant and the claimants’ predecessors in title and subsequently the claimants who acquired the yard in 2018.    The judge at first instance decided that the wording of the 1992 grant was wide, encompassing and expressly permitting all types of vehicles to use the ROW. There was evidence to show that prior to the grant of the ROW the owner had operated a nursery and garden centre receiving HGVs and other large vehicles into the car park. The judge found largely for the claimants and specified measurements for the width of the ROW from the main road through to the yard.    The judge also ruled that the defendant had substantially interfered with the claimants’ ROW in failing to maintain trees and bushes adjoining the ROW, allowing them to impinge on it and obstruct vehicles and a telephone line running to the yard. He had failed to maintain the road surface and installed a moveable fence across part of the ROW, leaving a gap so small that it obstructed vehicular access to the yard. The claimants were awarded damages of £2,000 and injunctions for a period of 10 years preventing the defendant from obstructing the ROW and telephone services running over it to the yard and requiring him to maintain the trees adjoining the ROW.  The defendant appealed the decision. An appeal judge can overturn a decision of a lower court if it is wrong or procedurally or otherwise unjust. An appeal is not a rehearing: findings of fact can only be overturned where there was no evidence to support them or no reasonable judge would have made them: Perry v Raleys Solicitors [2019] UKSC 5.   The defendant failed to make out his challenge on the width of the ROW in the car park, criticising elements included in the trial judge’s calculation which his counsel had specifically argued for at the hearing. In finding that there had been a substantial interference with the ROW, the trial judge had rejected the defendant’s arguments on the width of the gap in the fence: restating an argument was not a ground of appeal. The appeal against the trees impinging the ROW was factually incorrect and totally without merit, as was the allegation that the trial judge had not made a genuine attempt to assess damages. The damages award was low: the appeal judge would have awarded £6,400. A 10-year period for the injunctions was justifiable in view of the long history of unneighbourly behaviour. The appeal judge considered but did not make a civil restraint order against the defendant.   Louise Clark is a property law consultant and mediator