Rights of Way: a look at two common issues

Rights of way fall under the law of “easements”. An easement is the right of a landowner to use a connected parcel of land for the benefit of its own land. Within this context, this article looks at two common issues than landowners face when considering the extent to which their rights of way can be used

To want extent can a landowner use a right of way?

In principle, a landowner may only exercise a right of way to the extent that it was originally granted or acquired.

Where the right of way has been expressly granted to the landowner (for example, written down in a conveyance), the extent to which the right can be exercised will largely depend on the meaning of the words used. The landowner may exercise the right to any extent needed for the use of its land and in keeping with the express terms of the grant. This is true whether or not the right of way was originally granted for a specific purpose. For example, in the classic case of White v Grand Hotel (Eastbourne) Ltd [1913] 1 Ch 113, a right of way that was expressly granted for “general purposes” could be used to access a hotel even though the property was simply a house when the right was originally granted.

The position is different, however, when the landowner has acquired a right of way impliedly (typically, this occurs where multiple parcels of land originally formed one larger plot) or by prescription (ie. the right has been acquired through long use). In these circumstances, the way in which the right of way was used immediately prior to its acquisition will determine the extent to which the landowner may exercise the right.

Consequently, the landowner’s right of way will end if (1) the landowner’s land has had a “radical change in its character” since the (implied or prescriptive) right of way was originally acquired and (2) the continued use of the right of way will substantially increase. For example, in McAdams Homes Ltd v Robinson [2004] EWCA Civ 214, the Court of Appeal held that a right of way that had originally been used to access a bakery could not subsequently be used to access two houses. This was because the redevelopment of a bakery for residential uses amounted to a radical change that would substantially increase the extent to with the right of way would be used.

Can a landowner use its right of way to park?

In principle, the “right to park” can form the subject matter of a valid easement. Equally, a right to park can be implied into a right of way – although there are extremely few factual circumstances in which this is likely to have occurred.

More generally, most rights of way will (impliedly) include the right to stop momentarily. Beyond this, the right to load and unload may be implied into a right of way – although, again, this will depend on the specific factual circumstances in which the right of way was created and, where expressly granted, will be determined by a construction of the grant.

Conclusion

As this article demonstrates, the law surrounding rights of way can be very technical and give rise to a whole host of complex issues. We would therefore strongly advise someone to seek professional legal advice before granting someone a right of way or taking action that could alter the extent to which a right of way has been previously used.

Contact our Real Estate Dispute Resolution  team today

If you would like to discuss any issue relating to this blog, please do not hesitate to contact a member of the Real Estate Dispute Resolution Team on 01895 207835 or 01895 207295, or email us at propertydisputes@ibblaw.co.uk