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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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Under the Prescription Act 1832 a right of light arises after a ‘period of 20 years without interruption... unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing’.
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The traditional way for a landowner to stop a public highway being created across land is to close off access for one day every year, so as to make it clear that use by the public for the remainder of the year is permissive. Alternatively, many landowners erect signs under the Highways Act 1980. The point, of course, is that landowners are concerned about the creation of new public highways through long-use (ie public use, without permission, for a period of 20 years or more).
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A 1993 easement granted a right of way for the ‘repair, rebuilding or renewal’ of a property. The property owner now wanted to demolish the existing single-storey warehouse (3,382 sq ft) and replace it with a new five- or six- storey residential and commercial block (22,000 sq ft). He relied on the right of access granted in 1993, but it was argued against him that this would amount to a dramatic increase in the use of the right of way (ie use of the easement would be ‘excessive’ and thus not covered by the original grant).
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