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The case of Regan v Paul Properties DPF No 1 Ltd & ors [2006] EWHC 1941 caused much excitement, because it was one of those rare cases in which a homeowner obtained an injunction in respect of a right to light breach by a neighbouring developer. The end result was that the developer had to remove part of its building – at considerable cost.
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It is possible to lose an easement by ‘abandonment’, but that will usually require a relatively long period of non-use. However, a recent case shows how a short period of non-use can result in the loss of the easement – through estoppel.
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In England and Wales, the Crown has the power to grant licences to third parties to search and bore for oil (under Petroleum (Production) Act 1934). But, that licensing regime does not confer any right to access the oil – which means that the licensee will normally have to acquire the rights to the oil by privately negotiating an agreement for access with the landowner.
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Two recent CA decisions on the use of rights of way to allow access to development land. Together, they show a non-restrictive approach:
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Your land is subject to an easement allowing pipes and cables for utilities to run across your land. However, the electricity company will only run a supply if you agree to enter into a deed of grant with it. Are you obliged to do so?
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A trivial interference with a right of way (or other easement) is not actionable. But, the court will interfere if there is a substantial obstruction. However, what if the defendant offers an alternative route that is just as good as the original route?
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Be careful when dealing with easements arising under a lease that cannot be registered. Typically, this will be a lease of seven years or less (eg when it is a lease of part-only of the land). The starting point is to distinguish between legal and equitable easements. Easements under a lease for a term of years will be legal easements provided they are created under deed. So, a lease of seven years or less which is made by deed will almost certainly create legal easements. On the other hand, if that same lease is merely in writing, and not granted by deed, then the easement will be equitable. This has important implications:
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We normally think of the concept of derogation from grant in the context of leases (eg L cannot do something that conflicts with the lease he has granted to T). However, it is worth remembering that it can also apply in the context of easements, such as rights of way.
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If land is subject to a right of way, can the landowner grant an alternative route, and then close the original route?
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Remember that an easement will normally be a negative obligation – and, therefore, will not normally include a positive obligation. This is well illustrated by a recent case involving a right to lay electrical services across a plot of land.
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The defendant converted his building into a pub, with the rear yard being a beer garden. He claimed the benefit of a right of way through a passage on his neighbour’s land but the neighbour argued that the right of way did not extend to such an extensive use.
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The general rule is that no right to park will be implied into a right of way. There is, however, a Scottish case which is often referred to as an authority for an implied right to park.
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To what extent can someone who has granted a right of way ‘interfere’ with the exercise of that right of way?
The simple answer is that it will depend on whether the person with the benefit of the right of way is still left with a ‘reasonable’ use. But, if the right of way cannot be ‘substantially and practically exercised as conveniently as before’ then it will be an unlawful interference (B&Q [2001]).
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Is it possible for a squatter to obtain adverse possession of land dedicated as a public highway?
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