In a recent case, a driveway and land had been sold off for development. The developers then sold the driveway and one of the newly built houses to the defendant, who regularly parked his car on the driveway. It was then argued that this was in breach of the restrictive covenant entered into by the developer when he had bought the driveway and land:

‘Not at any time to park vehicles upon… or in any way obstruct the free passage of any part of the Roadway over which other persons have rights of way.’

The claimant argued that any parking on the land was a breach of the covenant. For his part, the defendant argued that the parking was not an obstruction and it did not prevent free passage along the roadway. The CA favoured the defendant’s approach. In its view, a right of way in law does not necessarily confer a right to pass over each and every square inch of the land; as long as sufficient space is left for the convenient and unimpeded use of the roadway, then other parts can be obstructed. Moreover, one has to look at the transfer as a whole, and the circumstances applying; the purpose of the covenant was to secure the use and enjoyment of the right of way, rather than to impose an absolute prohibition on parking, irrespective of whether there was an obstruction.

This approach is entirely consistent with the established authorities: for there to be an actionable interference with the of way then, as with any easement, it must be shown that the interference is ‘substantial’ (ie can the right of way still be exercised as conveniently). Thus, simply parking on a roadway does not of itself cause an obstruction to a right of way – and thus it cannot be said to be a ‘substantial’ interference with the right of way. Smith v Garrard [2004] EWCA Civ 1655 ; www.practicallaw.com/A46349. © Practical Lawyer