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Publish date

28 March 2022

Rights of way and development

The effect of a development on a right of way is a material planning consideration.  Developers can inadvertently affect a right of way through the course of construction either by crossing a right of way or by needing to use land immediately abutting a right of way which is adjacent to a development site.

This occurred in the case of Lea v Ward [2017] EWHC 2231(Ch) where the Court was asked to determine the extent of an imprecise right of way and whether development works had amounted to an interference of that right.

Mr Lea (the “Claimant”) had a right of way over Mr Ward’s land (the “Defendant”). The right included access over a “track or way” and was reserved to the Claimant’s brother by their father pursuant to a Deed of Gift of land in 1979 (“1979 Deed”).  The deed did not accurately specify the location or width of track.

The Claimant’s brother sold the land to the Defendant. The Defendant obtained planning permission for residential development which was then implemented. During the course of the works, the Defendant had erected fencing which temporarily obstructed the Claimant’s right of way. The building works were also alleged to have obstructed and altered the right of way, including a narrowing of its width.

The High Courts’ judgement was that the most natural reading of the right of way being “over the track or way” was to limit the right of way to the track that was actually in use at the time of the 1979 Deed. The section “in use” could be evidenced by what was discernible on the ground at the time. The High Court took the view that this would not include the verges and, had the reserved right meant to include the whole extent of the strip, it would have stated this expressly. This view is based on the construction of the 1979 Deed and the fact that the wording contained therein is quite precise in nature.

The Claimant sought to argue that should the High Court find that the right of way would be determined narrowly, then the right carried with it the right to overhang, swing and manoeuvre vehicles and equipment over the verges. The High Court stated that this argument failed and that it was clear law that an owner is entitled to build right up to the boundary of his land.

The High Court did hold that the Claimant was entitled to damages at common law for the nuisance caused by the erection of the Heras fencing (in situ for a period of 5 months) which obstructed the right of way but, since there was no evidence of any substantial inconvenience having been caused to the Claimant, nominal damages of £5 were awarded to the Claimant on this ground.

Although the boundary structures erected by the Defendant in the course of his development did amount to a substantial interference of the right, as the impact was minimal, £500 was awarded to the Claimant. The High Court confirmed that an injunction would be granted to the Claimant if the Defendant was not able to provide an alternative but equally convenient route to the Claimant.

For a developer, the case is a reminder of the difficulties that can arise when works encroach upon the rights of other land owners and users.  Planning permission does not grant the right to close, alter or build over a right of way in any way.  It is the rights granted and reserved in historic title deeds that must be taken into consideration and interpreted accordingly.

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