6. Juli 2023
Real Estate Disputes Alert - Summer 2023 – 1 von 5 Insights
When it comes to rights of way, how much is too much? This was the question the High Court was asked to grapple with in this case relating to excessive use of a right of way over a driveway. The most recent in a line of case law on the topic, the High Court's decision re-iterates that the issue of excessive use is particularly fact sensitive and that good expert evidence will often be critical to succeed.
This case centred around a right of way over the driveway of a farmhouse and for the benefit of an adjacent agricultural yard. The farmhouse and the yard once formed part of the same parcel of land and, as a result, only the farmhouse had a direct access point to the public highway via its driveway. When the yard was sold as a separate piece of land in 1972, the parties made sure to include a right of way in the conveyance for the benefit of the owners of the newly siphoned off yard to ensure that they had sufficient access to their land.
The right of way in question was particularly broad and permitted the owners of the yard to pass over the farmhouse driveway "at all times and for all purposes with or without animals and vehicles".
The current owners of the farmhouse and the yard were the Claimant and Defendant respectively. The Defendant was a developer and intended to re-develop the yard into residential houses. Given that the only means of access to the highway was over the Claimant's driveway, the right of way benefiting the defendant's land would be exercised throughout the period of construction as well as by the eventual owners of the residential houses after the development was complete.
After the Defendant obtained planning permission for its proposed development in April 2020, the Claimant brought a claim for an injunction on the basis that the proposed use of the right of way both to carry out the construction and by the occupiers of the new houses would constitute an excessive user of the right and/or a nuisance.
The High Court ultimately found in favour of the Defendant developer and concluded that the intended use of the driveway did not constitute an excessive use of the right of way benefiting the yard.
In particular, the Court reviewed the previous decisions on this issue and distilled the following key principles which it then applied to the facts in question:
When considering the above principles, the Court found on these particular facts that both the use by construction vehicles and the residential occupiers of the finished development was not excessive. It was clearly contemplated at the time of grant that the driveway should be used for both agricultural uses by the owners of the farm yard and by the residential occupiers of the farm house; both uses were permitted. In reaching this decision, the Court also gave consideration to the potential impact that the use of heavy construction vehicles may have on the state and condition of the driveway but concluded that this did not amount to an unreasonable interference given the short duration of the construction works. Furthermore, the Court was satisfied that the driveway was physically capable of being used by both the construction vehicles and the vehicles of future occupiers of the houses and, as such, both proposed uses were not excessive.
The Court also dismissed the Claimant's claim in nuisance, finding that both the development and the use of the driveway by the residents of the newly built properties would not unreasonably interfere with the Claimant's use and enjoyment of the farmhouse.
Whilst the decision of HHJ Paul Matthews in this case provides some helpful insight into the types of factors a Court will consider when determining if a user is excessive, the key takeaway is that each case will always be assessed on its own facts and so the likely outcome of will be very difficult to predict. Potential claimants would therefore be well advised against relying heavily on previous case law, even where the facts may seem similar, as this is an area where expert evidence will often be critical in convincing the Court to decide one way or the other.
The Court may have sided with the Defendant on the particular facts of this case but the decision does remind future developers of the risk that even a broad right of way may be limited by the Court if the circumstances suggest that the accessway is not physically capable of supporting the construction traffic or the construction period is expected to be particularly lengthy.
Bucknell v Alchemy Estates (Holywell) Ltd  EWHC 683 (Ch)
6. July 2023
von Alicia Convery
6. July 2023
von Luke Newman