VWV Successfully Defends Client in High Court Litigation Over Interpretation of an Express Right of Way

Our client, the defendant in the case, owns land benefitting from an express right of way at all times and for all purposes over the claimant's driveway. The defendant obtained planning permission to develop two new residential houses on former agricultural land in April 2020. The claimant brought a claim arguing that the defendant's proposed use of the driveway to carry out construction of the development, and use of the driveway by occupiers of the new houses, would constitute (a) an excessive user of the right of way, and/or (b) a nuisance.

These issues were considered by the Court in Bucknell v Alchemy Estates (Holywell) Limited. The case was heard by HHJ Paul Matthews in the Chancery Division of the High Court.

Excessive User of the Right of Way

In assessing whether the defendant's proposed use of the driveway  constituted an excessive user of the right of way, the Court first looked at the construction of the express grant to consider the purposes for which the right can be exercised.  The Court reviewed the relevant case law and noted the following principles:

• the right of way must not be used excessively ie it must not be used so as to interfere unreasonably with the use by other persons having a similar right
• the question of excessive user is fact sensitive and evaluative
• if the trial judge applies the correct test in law, the appellate court will only interfere with that decision where it is one which no reasonable tribunal could have reached
• accordingly, an evaluative decision by the court in one set of circumstances that there is or is not excessive user, cannot govern any other set of circumstances

Applying these principles to the facts of the case, the judge concluded that the defendant's predecessor's use of the driveway for agricultural purposes when the right was granted in 1972, and the simultaneous grant of a right of way by the same grantor and in the same terms over the same driveway for the benefit of a residential property owned by a third party, indicated that at the time of the grant, use of the driveway for both agricultural and residential purposes was contemplated. 

In evaluating the effect of user for the purposes of construction, the Court did not consider that, on the expert evidence, the use of heavy construction vehicles on the driveway would have caused any damage to its surface amounting to an unreasonable interference with its use by others during the limited time that it continued. Further, in assessing the effect of user for the purposes of habitation, the Court decided that the additional use imposed on the driveway by the habitation of two houses built on the land would not be excessive and would not interfere unreasonably with user by others having a similar right. The driveway was physically capable of carrying the traffic associated with the development and use of the properties once built.

Nuisance

The Court did not consider that the user of the driveway for the purposes of construction would have amounted to an actionable nuisance. The Judge held, following previous case law, that demolition and construction are facts of everyday life, and there must be "give and take" in relation to them. A few movements a day, for a limited period, over the driveway, would not unduly interfere with the claimant's enjoyment of her land.  Further, the Court found, user by the occupants of two houses would not interfere with the enjoyment by the claimant of her land.

• The decision serves as a reminder that the question whether the use of an express right of way amounts to excessive user is evaluative. Each case will clearly turn on its own facts. Further, the judgment warns, as expert evidence becomes more sophisticated, claimants should take caution not to rely heavily on the specific facts of previous case law when bringing a claim for excessive user.

For more information regarding the interpretation of an express right of way, please contact Katie Hickman in our Property Litigation team on 020 7665 0913 or complete the form below.