Not every interference with a right of way is actionable. There must be a substantial interference with the enjoyment of it and there will be no actionable interference with a right of way if it can be substantially and practically exercised as conveniently as it has been previously. The test is not whether what the user is left with is reasonable. The court must decide whether it is reasonable for the user to insist on being able to continue to use the right of way in accordance with his preferred modus operandi: B&Q PLC v Liverpool and Lancashire Properties Limited (2001) 81 P&CR 20; [2000] EGCS 101.
Begley v Taylor [2014] EWHC 1180 (Ch); [2014] PLSCS 223 concerned rights of way over a private road that served three residential properties. The houses were all built before February 1973 pursuant to a planning permission that required the developer to provide adequate space for vehicles to turn within the development without having to reverse onto a busy public highway.
The developer conveyed the private road to the purchasers of the house at the end of the cul-de-sac, subject to rights of way in favour of the other two properties. The owners of all three houses used the road without disagreement until 2007, when the servient land changed hands. In due course, the new owners began to construct a gate, which restricted access to the end of the cul-de-sac, and created a large enclosed area in front of their house for their own personal use.
The owners of the adjoining properties complained that the owners of the road were interfering with their rights of way because they were unable to use the end of the cul-de-sac to turn their vehicles. They explained that visitors to the house at the end of the cul-de-sac were also making vehicular manoeuvres more difficult because they were parking in what remained of the roadway, instead of parking immediately outside the house at the end.
The court upheld the claim because the evidence in support of the use made of the cul-de-sac was overwhelming. However, it then moved on to consider whether to grant an injunction to prevent the owners of the properties that benefitted from the rights of way from parking in the cul-de-sac themselves.
The judge accepted that a right to park is capable of being an easement, which can be acquired by prescription, unless the effect would be to deprive the servient owner of any reasonable use of its land so as to render its ownership illusory: Moncrieff v Jamieson [2007] 1 WLR 2620. The evidence showed that the users of the rights of way had parked on the road for a period in excess of twenty years, without obtaining permission to do so. However, this had not prevented the owners from paving the surface at the end of the cul-de-sac for aesthetic reasons and they still had plenty of room to obtain access to, and park cars outside, their own house. Consequently, their ownership was not illusory.
Even so, the owners of the dominant land had not acquired rights to park anywhere they chose. They had each acquired rights to park up to three cars in positions identified by the judge by reference to the history of parking in the cul-de-sac.
Allyson Colby is a property law consultant
