Any occupier of property that benefits from
a right of way expressed in wide general terms will
be relieved by the recent decision in Brooks v Young
[2008], in which an attempt to give such a right a
restrictive interpretation was defeated in the Court
of Appeal. Although the case was concerned with
residential property, the wording used would also be
common in a grant of a right of way affecting
commercial property.
FACTS OF THE DISPUTE
The dispute was one of those unedifying neighbour
disputes. Mr Brooks and Mr Young had bought
adjoining properties from the local authority under
the right-to-buy legislation. Mr Young’s property
benefited from a right of way along the side and
across the rear of Mr Brooks’ property, ‘for all proper
purposes connected with the reasonable enjoyment
of the property’.
Mr Brooks brought proceedings against Mr Young for
an injunction to restrain use of the right of way, on the
basis that the use being made of it was excessive. He
complained that it was used by visitors to the
property, to take the dog for a walk, and for wheeling
bicycles to and from the house, arguing that it should
only be used where the front door could not
reasonably be used instead, for example when putting
out rubbish bins. He initially succeeded, assisted by
two letters written by the local authority at the time
when it originally granted the right, indicating what
the authority considered to be reasonable use.
OUTCOME
The decision was overturned on the present appeal.
First, the judge should not have considered evidence
concerning the subjective intention of the local
authority at the time it granted the right. The court’s
role was to ascertain the parties’ objective intention
by interpreting the grant on the basis of the words
used. Evidence as to subjective intention is only
relevant if a party is asking to have the grant rectified.
More importantly for general purposes, the grant
was in terms that permitted a wide general use, and
interpreting the grant in such a restrictive way was
effectively to rewrite it. Had the parties’ objective
intention been to restrict the use of the right, then
such wide wording would not have been used. There
were no grounds, on the basis of the wording of the
grant, for restricting it to occasions where the use
of the front door was not reasonably practicable.
COMMENT
Neighbour disputes typically have few lessons
other than the undesirability of becoming engaged
in one. Here, as well as reassurance for occupiers
that wide, general rights should usually be
interpreted accordingly, there is the lesson for
those drafting them that if some restrictive
application is intended, then it should be specifically
dealt with in the drafting.
Any occupier of property that benefits from
a right of way expressed in wide general terms will
be relieved by the recent decision in Brooks v Young
[2008], in which an attempt to give such a right a
restrictive interpretation was defeated in the Court
of Appeal. Although the case was concerned with
residential property, the wording used would also be
common in a grant of a right of way affecting
commercial property.
