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The restriction of easement rights ?

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It is established that when an easement has been granted for a specific purpose it cannot be taken advantage of and used for alternative purposes. However, an issue of concern may arise when more than one person has the benefit of that easement, and some of those persons attempt to use the easement in an unauthorised manner. In such situations the extent to which the owner of the burdened land may restrict access to the easement in order to prevent its unauthorised use is less clear. The Court of Appeal has recently issued judgment in a case where such issues had arisen, and it was held that that an owner of land burdened by an easement may not prevent the lawful use of that right of way by a person with benefit in order to prevent its unauthorised use by others.

Maioriello v Ashdale Land and Property Company Ltd1 – The Facts

In this case the Court was concerned with an easement granted over an access road to a large field in Ripley, Surrey.

 In 1995 the claimant sold the field, together with a right of way over the access road, which provided a link to the main road. The right of way providing access to the field was granted “for agricultural purposes only, with or without vehicles, farm machinery and animals”. In 2009 the field was sold off in parts, and steps were taken to convert the land into a large travellers site. In breach of the terms of the right of way, the road was used for purposes other than agricultural, including the transportation of building materials and construction equipment.

Various injunctions were granted on the claimant’s behalf to restrict the use of the road, however they were ineffective at preventing the unauthorised use of the road. The claimant finally resorted to laying down four large concrete blocks at the end of the road to prevent vehicular access to the site.

At first instance, the High Court granted the declaration and injunction sought by the claimant, entitling them to obstruct all access over the road. In the opinion of the Court the granting of the declaration was justified, as it was the only way in which it felt the claimant would be able to prevent unauthorised trespass over the road, all previous court orders having been breached repeatedly. There was no distinction in the terms of the order made between the 12 different defendants that each owned part of the land.

 Only one of the defendants (Mr. Cash) appealed against the order. He accepted an injunction restraining the use of the road for any purpose other than agriculture, but opposed any further additional relief granted to the claimant.

The Court of Appeal

 The decision for the Court of Appeal was whether the High Court had been wrong to grant the declaration and injunction restricting the rights of Mr. Cash without any limit of time or circumstances.

Although Mr. Cash had purchased the land for use as a traveller caravan site, and it appeared that he personally had no plans to use the land for the purposes of agriculture, he was distinguishable from the other defendant’s for several reasons. Like the other defendant’s Mr. Cash had used the road in breach of the right of way granted, however his breach was brief and he had complied with all court orders making no further use of the road after they had been made. The effect of the order was that Mr. Cash would not be able to inspect his land, use it himself for agriculture, or show it to a prospective tenant who planned to use it for agriculture, without having to make an application to court to amend the order. Mr. Cash contended that it was wrong to require him to return to court to make such an application to make use of a legal right benefitting the land that he owned.

The Court of Appeal held that whilst the trial judge was entitled to permit the claimant to prevent the unauthorised use of the road, case law did not support allowing him to prevent absolutely the lawful use of a right of way by one party because of the unauthorised use of others. As such, the Court held that the case law did not support the remarkably wide declaration and injunction granted against Mr. Cash.

Impact

Any landowner who is disposing of land, or part of land, and at the same time granting a right of way, will want to ensure that any rights that they grant are exercised in accordance with any restrictions contained in the original grant. Equally, any purchaser of land, which has the benefit of a right of way, will want to ensure that they are entitled to fully exercise the rights that they have been granted. This case demonstrates that the court will protect the rights of those with benefit, and will not permit the draconian act of an owner of burdened land permanently prevent a person lawfully exercising their right of way. However, it should be noted that the court did suggested that it would have been permissible for a temporary suspension of rights to have been put in place, until the claimant had been reasonably satisfied that the use would be in connection with agricultural purposes. One thing is clear, it is important when disposing of / purchasing land to take the time to fully understand any rights created, and how any successors and other parties might attempt to exercise them.

For additional information please contact Edward Worthy on 01245 228124 or worthye@gepp.co.uk

The above is not legal advice; it is intended to provide information of general interest about current legal issues.

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