Lea v Ward [2017] EWHC 2231 (Ch) concerned the obstruction and alteration of a right of way along a strip of land bordered on one side by an embankment and on the other side by farm buildings. The owner of the land that benefitted from the right of way argued that the easement affected the entirety of the strip. But the owner of the strip, who wanted to incorporate it into the gardens of new homes, claimed that the right of way affected only the discernible track when the right was granted.
Who was right? The judge accepted that the most natural reading of the grant of a right of way “over the track….” was that the right of way was limited to the track that was actually in use at the time when the right was granted. In his judgment, this would not include the verges and would encompass only the physical extent of the track at the time: Oliver v Symons [2012] EWCA Civ 267.
The judge rejected a submission that the parties had intended the right of way to be sufficiently wide to accommodate agricultural machinery in the future, regardless of how big such machinery might become, or that it included a right to overhang, swing and manoeuvre vehicles and equipment over the verges. There was every reason to suppose that the parties had intended to create a right of way that was as wide as – but no wider than – the track itself. That track had been clearly discernible, was no more than 3.75 metres wide, and did not extend across the whole of the strip.
The owner of the strip had altered the route of the track, even though it has long been established that a servient landowner cannot unilaterally alter the route of an easement (unless such a right is an express or implied term of the easement granted or is subsequently conferred on him). Furthermore, the availability of a new route will not, of itself, extinguish the rights originally granted: Heslop v Bishton [2009] EWHC 607 (Ch).
In one case, the court did refuse to grant an injunction to prevent the realignment of a road in order to facilitate a development of substantial public and local importance. The circumstances were exceptional and the proposed works would improve road safety: Greenwich Healthcare NHS Trust v London & Quadrant Housing Trust [1998] 3 All ER 437. And, in Heslop the court did consider the possibility of declining to grant an injunction in respect of an interference with a right of way because an alternative route was available. But the court noted that the owner of the servient land was not prepared to grant the user a permanent right of way over the alternative route in that case – and was offering a mere licence expressly limited to 10 years duration instead. Consequently, the user was entitled to insist on use of the route originally granted to him.
The substituted right of way provided in this case was less convenient for the user. But, if the owner of the track were to agree to make changes to ensure that the alternative route was just as convenient, and grant a formal right of way over the new route, the judge indicated that he would be prepared to follow Greenwich and award modest damages in respect of the interference with the right of way, instead of an injunction requiring the removal of the obstructions.
Allyson Colby is a property law consultant
