Suppose you have a right of way ‘to pass and repass along the track with or without vehicles’. Can you increase the width of the track so you can take larger vehicles down it?

The answer to that question will depend upon the physical characteristics of the track (ie what is involved in increasing the width of the right of way?). In general, however, the courts adopt a restrictive policy. For instance, in White [1994] the right of way was ‘with or without motor vehicles’, but the court looked at the physical characteristics of the track at the date of the grant of the right of way; at that time it was 9ft wide and resembled a dirt track. Given the unsuitability for passage along the track by large vehicles it was held that ‘motor vehicles’ was to be restricted to vehicles of a certain dimension and weight. Likewise, in Mills [1999] the easement holder could not demolish sections of a stone wall that had been in place at the date of the grant, since it was held that there was nothing insubstantial or transient about such a wall (and the very existence of the wall restricted the extent of the easement). Conversely, in Charles [1993] the presence of a fl owerbed was held to be too transient to qualify for the express wording of a right of way, and thus an increased width was allowed.