Zieleniewski v Scheyd and another
Rix and Moses LJJ and Briggs J
Right of way – Interference – Appellant having prescriptive right of way for agricultural purposes over respondents’ land to access field – Respondents erecting wall and fence enclosing all but strip along edge of land – Whether actionable interference with right of way – Whether obstructing reasonable use of right – Appeal allowed
The appellant brought proceedings against the respondents for damages and an injunction in respect of interference with an alleged right of way for agricultural purposes over their land. He claimed that he had a right by prescription to cross a triangular area of hardstanding belonging to the respondents, adjacent to the highway, in order to access a field, but that the respondents had interfered with that right by erecting a wall and fence that enclosed all but a strip of land along the edge of the triangular area. The strip was a little over 10ft wide at its narrowest and the appellant claimed that it was no longer possible for him to turn and manoeuvre vehicles.
In the county court, the judge found that the triangular area had for several decades been used as of right as the means of access to the field from the highway by vehicles delivering and collecting livestock and agricultural machinery such as tractors and balers. He made a declaration that a right of way for agricultural purposes existed but held that the appellant enjoyed no right to use the triangular area as a turning and manoeuvring area. He refused to grant an injunction or damages on the ground that the wall and fence did not interfere with the exercise of the appellant’s right of way.
On appeal, the appellant accepted the judge’s decision as to the extent of the right of way but challenged his finding that there was no actionable interference with the right that had been found to exist. He relied in part on evidence that a tractor pulling a conventional baler, producing small square hay bales, could not successfully negotiate the strip, notwithstanding that a more modern type producing large round bales could do so.
Held: The appeal was allowed.
Not every interference with a right of way was actionable and the owner of the right could only object to activities that substantially interfered with such exercise of the defined right as it reasonably required for the time being. Whether an owner reasonably required to exercise its right in a particular way was to be addressed by reference to convenience, rather than necessity or even reasonable necessity. Accordingly, if an obstruction interfered with a particular mode of exercise of the right, which it was neither unreasonable nor perverse for the owner to insist on, then the obstruction would be an actionable interference even if other reasonable ways of exercising the right remained and would be preferred by most people: B&Q plc v Liverpool & Lancashire Properties Ltd (2001) 81 P&CR 246; [2001] 1 EGLR 92; [2001] 15 EG 138 applied. Further, it was well established that a vehicular right of way acquired by prescription did not confine the owner to enjoyment only by the types of vehicle in current use during the period when the easement was acquired: Lock v Abercaster Ltd [1939] Ch 861 applied. Conversely, where developments in agricultural machinery had led to the machinery used during the period of prescription largely being replaced by more modern types, the owner was not deprived of the right to continue using the right of way for the more old-fashioned type of machinery, so long as such use could not be characterised as unreasonable or perverse.
The judge had been wrong to conclude that there was no satisfactory evidence of substantial interference with the appellant’s right of way to the field. He had given no sufficient reasons for rejecting the evidence of the appellant’s witnesses about conventional balers, or had wrongly treated that evidence as irrelevant in circumstances where he found that no difficulties would be encountered with the more prevalent modern type of round baler. The question of actionable interference had to be addressed by reference to any reasonable particular use of which the appellant complained that he was deprived. The appellant’s evidence, if credible, showed that there was a substantial interference in the form of an obstruction that rendered a particular reasonable use of the agricultural right of way to the field either impossible or seriously inconvenient. The modern prevalence of round balers did not mean that a right to continue accessing the field with the now old-fashioned conventional baler, where reasonably required for the purpose of producing small square bales, had passed its shelf life.
Caroline Shea (instructed by Wilsons Solicitors LLP) appeared for the appellant; Toby Huggins (instructed by QualitySolicitors Farnfields, of Gillingham) appeared for the respondents.
Sally Dobson, barrister
Right of way – Interference – Appellant having prescriptive right of way for agricultural purposes over respondents’ land to access field – Respondents erecting wall and fence enclosing all but strip along edge of land – Whether actionable interference with right of way – Whether obstructing reasonable use of right – Appeal allowed The appellant brought proceedings against the respondents for damages and an injunction in respect of interference with an alleged right of way for agricultural purposes over their land. He claimed that he had a right by prescription to cross a triangular area of hardstanding belonging to the respondents, adjacent to the highway, in order to access a field, but that the respondents had interfered with that right by erecting a wall and fence that enclosed all but a strip of land along the edge of the triangular area. The strip was a little over 10ft wide at its narrowest and the appellant claimed that it was no longer possible for him to turn and manoeuvre vehicles.In the county court, the judge found that the triangular area had for several decades been used as of right as the means of access to the field from the highway by vehicles delivering and collecting livestock and agricultural machinery such as tractors and balers. He made a declaration that a right of way for agricultural purposes existed but held that the appellant enjoyed no right to use the triangular area as a turning and manoeuvring area. He refused to grant an injunction or damages on the ground that the wall and fence did not interfere with the exercise of the appellant’s right of way. On appeal, the appellant accepted the judge’s decision as to the extent of the right of way but challenged his finding that there was no actionable interference with the right that had been found to exist. He relied in part on evidence that a tractor pulling a conventional baler, producing small square hay bales, could not successfully negotiate the strip, notwithstanding that a more modern type producing large round bales could do so.Held: The appeal was allowed. Not every interference with a right of way was actionable and the owner of the right could only object to activities that substantially interfered with such exercise of the defined right as it reasonably required for the time being. Whether an owner reasonably required to exercise its right in a particular way was to be addressed by reference to convenience, rather than necessity or even reasonable necessity. Accordingly, if an obstruction interfered with a particular mode of exercise of the right, which it was neither unreasonable nor perverse for the owner to insist on, then the obstruction would be an actionable interference even if other reasonable ways of exercising the right remained and would be preferred by most people: B&Q plc v Liverpool & Lancashire Properties Ltd (2001) 81 P&CR 246; [2001] 1 EGLR 92; [2001] 15 EG 138 applied. Further, it was well established that a vehicular right of way acquired by prescription did not confine the owner to enjoyment only by the types of vehicle in current use during the period when the easement was acquired: Lock v Abercaster Ltd [1939] Ch 861 applied. Conversely, where developments in agricultural machinery had led to the machinery used during the period of prescription largely being replaced by more modern types, the owner was not deprived of the right to continue using the right of way for the more old-fashioned type of machinery, so long as such use could not be characterised as unreasonable or perverse.The judge had been wrong to conclude that there was no satisfactory evidence of substantial interference with the appellant’s right of way to the field. He had given no sufficient reasons for rejecting the evidence of the appellant’s witnesses about conventional balers, or had wrongly treated that evidence as irrelevant in circumstances where he found that no difficulties would be encountered with the more prevalent modern type of round baler. The question of actionable interference had to be addressed by reference to any reasonable particular use of which the appellant complained that he was deprived. The appellant’s evidence, if credible, showed that there was a substantial interference in the form of an obstruction that rendered a particular reasonable use of the agricultural right of way to the field either impossible or seriously inconvenient. The modern prevalence of round balers did not mean that a right to continue accessing the field with the now old-fashioned conventional baler, where reasonably required for the purpose of producing small square bales, had passed its shelf life.Caroline Shea (instructed by Wilsons Solicitors LLP) appeared for the appellant; Toby Huggins (instructed by QualitySolicitors Farnfields, of Gillingham) appeared for the respondents.
Sally Dobson, barrister
