What is a Right of Way?
A right of way is commonly apparent when there is a shared accessway. For example, on a residential development where the roads remain unadopted and private, a right of way will need to be reserved over the relevant roads in order for homeowners to access their properties. It is therefore essential that these rights are contained within the transfer deed.
Rights of way are capable of being granted other than by a transfer of land. For example, by two or more parties entering into a deed of easement.
Knowing the extent of these rights, however, can be difficult unless it is expressly stated in the document containing the rights granted. Establishing whether a right has been interfered with, therefore, is equally thought-provoking.
Vance & Vance v Collerton & Collerton
This case related to a boundary and right of way dispute between neighbouring property owners and analysed whether the partial blocking of a driveway by the parking of a vehicle amounted to an actionable interference with the right of way granted when vehicles could still pass.
The driveway belonged to the Collerton’s (C). Other than at the entrance point from the highway where the driveway was wide enough for two cars to pass, this was only wide enough for a single large car or van.
The Vance’s (V) owned a cottage which benefitted from a right to pass and re-pass along the driveway “with or without vehicles of any description and for all purposes in connection with the use and enjoyment of [the cottage]”.
V chose to reverse into the driveway from the highway as, once onto the driveway, there was no ability for turning the car around.
C began to park their car at the entrance of the driveway and the V argued that this interfered with their right of way as V could not safely reverse into the driveway if C had parked at the entrance. C argued that V’s preference for entering onto the driveway was unreasonable as they were still able to use the accessway.
Court Ruling
The court agreed that C’s parking did interfere with V’s right of way and, although the driveway was wide enough at a point to accommodate two cars, it was necessary for V to exercise the right of way in their chosen way (i.e. by reversing from the highway).
The court held the parties contracted for the “relative luxury” of a right of way over the whole of the driveway that could be exercised freely.
Due to the wide interpretation of the right, the court ruled that the test for interference was one of ‘convenience’ and not ‘necessity’. If the right of way cannot be substantially and practically exercised as conveniently as before, there is an actionable interference.
‘Actionable Interference’
For an obstruction of a right of way to be actionable, the obstruction has to be substantial. It is not accepted that the person who grants the right (and who owns the land subject to the right, in the Vance case, the driveway) to deprive the person benefitting from the right (the Collertons) of its preferred method of use if they believe that someone else would prefer to exercise the right differently. This is only arguable if the way in which the person benefitting from the right chooses to exercise the right in an unreasonable way.
Comment
Care must be taken when a right of way is granted so as to avoid contracting for a “relative luxury” due to the wide interpretation of the right unless there is the intention to do so.
Prior to entering into documents which feature easements, it is highly recommended you seek legal advice on the impact these rights may have on your ownership of the property.
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