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Is the use of a right of way excessive?

A recent High Court decision has confirmed that whether or not the use of a right of way is excessive will depend on the individual circumstances, and that unrestricted rights of way can in fact be limited.

In this article we look at the case of  Bucknell v Alchemy Estates (Holywell) Ltd [2023] EWHC 683 (Ch) 

The facts

The case concerned whether a right of way, which was originally expressly granted for the benefit of an agricultural yard “at all times and for all purposes with or without animals and vehicles… “, would permit increased use resulting from a residential development and the associated construction traffic, or whether that use would be excessive and amount to a nuisance.

The claimant was the owner of a farmhouse situated on land which joined the public highway, the farmhouse historically having been comprised within the same parcel of land as a yard which did not itself have direct access to the highway. The right of way was granted over the driveway of the farmhouse when the yard was sold as a separate piece of land in 1972, in order to provide access for the yard to the highway. The defendant owner of the yard was a company which planned to develop two new houses at the yard, and after plans were commenced the claimant applied to Court for relief.

Crucially, the Court had to decide whether the construction traffic and the ongoing additional use associated with two new houses would cause excessive use which was outside the scope of the express right of way.

The High Court’s Judgment

The High Court found in favour of the defendant, ruling on the facts that the planned use of the driveway would not be excessive.

On a review of previous authorities, HHJ Paul Matthews derived the principles that a right of way must not be used excessively so as to interfere unreasonably with the exercise of similar rights by others, and the Court’s decision regarding whether or not a particular use is excessive will be evaluative and fact-sensitive. Therefore one evaluative decision made on one set of circumstances cannot govern a different set of circumstances.

The Court highlighted that it is possible for an express right of way to accommodate alternative uses to those required at the time of the grant, the right being capable of continuing despite changes in land use. It was to be expected that buildings would be demolished and reconstructed over time requiring the use of construction vehicles, and it was an obvious fact that the purposes of land may change over time.

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In this instance both parties adduced detailed evidence from experts in traffic management and in engineering, and it was found that construction traffic and residential use were permitted despite these uses contrasting with the agricultural traffic which served the yard originally.

Factors considered by the Court included that the driveway was not physically unsuitable for residential use, and it already provided access for a separate residential property showing that residential use was contemplated at the time of grant. The limited duration and intensity of construction traffic was found not to unreasonably interfere with the use of the driveway by others, and was therefore not excessive. The Court accepted evidence that damage would not be caused to the surface of the driveway, and any wear and tear was deemed to be covered by words of the express grant which provided for contributions towards upkeep from users to the claimant.

It is important to appreciate that the decision could have been different, for example, had the planned number of new houses been significantly higher, or had the duration and intensity of the construction traffic been greater.

Why is this important?

This decision provides a useful reminder that rights of access are limited, and determining those limits will always hinge on the specific facts. In particular, when planning any new development it is important to consider the effect on any existing rights of way, including how construction and future uses will impact the use of the access by others, and whether there will be any physical degradation of the accessways by the planned use.  Furthermore it is likely that any dispute in this area will require detailed expert evidence.

The Property Litigation Team is here to help if you experience any issues relating to rights of way, or any other property litigation issues. Please click here to get in touch with our expert team.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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