Two recent CA decisions on the use of rights of way to allow access to development land. Together, they show a non-restrictive approach:

• In the 1920s three cottages and gardens were sold off, each having the right to use a track ‘for all reasonable and usual purposes... to give access to and from hereditaments hereby conveyed’. The current owner of the three plots had planning permission to build a house on the garden of each cottage and wanted to use the right of way. The county court held that the right of way could only relate to the use of the land as ‘garden’ and so was not permitted. However, the CA disagreed – the fact that the parties may have originally contemplated that the plot would be used as garden did not show an intention that the track could only be used as long as the plots did indeed continue to be used as gardens. The key issue was whether the phrase ‘all reasonable and usual purposes’ implied a limitation on the grant of the right of way – and that was an odd phrase to use if the right of way was meant to be limited. In simple terms, the wording prohibited unreasonable and unusual purposes, whereas the use of a plot for building and occupation of a dwelling house was ‘reasonable and usual’, and thus the right of way could be used.
• Land at the rear of a property had been sold off. It had a right of way ‘at all times and for all purposes’ connected with its use as a garth (a piece of land adjoining a house, traditionally used for agricultural purposes). A developer had obtained consent to build three houses on the garth, and the question then arose as to whether the right of way could be used to access those houses. The county court judge held that it was linked to agricultural use (the garth), but the CA disagreed. The phrase ‘use at all times and for all purposes’ was to be taken literally, in accordance with the common usage of such wording. The court did not think the intention had been to limit the land to its old use and to prevent more profitable use in the future. Thus, the right of way did, prima facie, apply. However, the CA noted that a right of way cannot be used excessively, and the CA did not feel it could interfere with the trial judge’s view that use of the small track for accessing three houses would be excessive, since it would interfere with the use of the back garden of the retained property. Thus, a right ‘for all purposes’ does not allow a right to be used to an unreasonable level that will cause a nuisance to neighbouring owners.

What both these cases show is a willingness by the CA to adopt a robust approach to widely worded rights of way, subject to a reminder that no right of way can be used excessively. As far as excessive use is concerned, however, it should be remembered that a proposal to use the right of way for (eg) three houses may not be excessive if it is watered down to use by (eg) two houses. See Davill v Pull [2009] EWCA Civ 1309; Thompson v Bee [2009] EWCA Civ 1212 (access free at www.practicalconveyancing.co.uk).