In Minor [1997] the landowner wanted to build a porch at the front of his house which would abut directly onto a narrow track which was a right of way. The porch would not encroach onto the right of way but it would make negotiating the track significantly more difficult (especially for larger vehicles). The CA held that there was no rule of law preventing the owner of a servient tenement from building right up to the extremity of the track, and thus it was not an interference with the right of way.

In contrast, in VT Engineering [1968] Megarry J said that the landowner ‘cannot fence or build up to the very edge of the way granted, but must leave a freeboard of a foot or two, particularly if there are bends in the way’. That extra space is described as ‘swing space’.

At first sight, these two decisions are difficult to reconcile. An article in the SJ looks at them in the context of a recently settled case which involved a right of way ‘at all times and for all purposes’ over a paved 8ft wide driveway, which had several sharp bends. The property owners argued that the vehicles were damaging the grass verges, and so they erected scaffolding fences with posts flush against the edge of the 8ft driveway. This made negotiating turns (in particular, the turn into the land owned by the person with the benefit of the right of way) far more difficult. Whilst vehicles could keep their wheels within the confines of the driveway, there would still be the risk of damage because there was reduced lateral swing space. Whilst the case settled, and the court did therefore not have to give judgment, it is argued that this case neatly illustrates how the two seemingly conflicting authorities can be reconciled. In Minor [1997] the right of way was a straight line, and it is difficult to see how a vehicle could have been allowed to overhang the edges of the right of way. But, in VT Engineering [1968] there were bends and thus lateral swing space was needed to negotiate those bends. Accordingly, if there are bends it would seem that lateral space is needed, the argument being that you have to interpret a grant so as to include whatever lateral swing space is reasonably required (since the nature and extent of any expressly granted easement ‘depends on the language… construed in the context of the circumstances… including the nature of the place’). In summary, therefore, you probably can fencein a right of way with fencing on the boundary when the track is straight, but you probably have to leave swing space on the corners. For a discussion see [2007] SJ 389.  © Practical Lawyer