Disputed Right of Way – Case Study

10th February 2023 by

Mark Davies, Partner and head of Property Litigation, successfully represented an Applicant at tribunal in a case which raised and clarified some interesting points regarding the interpretation and enforceability of rights of way in plot sales.

Healys acted for the successful Applicants in a case before the First Tier Tribunal (Land Registration Section) involving a disputed right of way over neighbouring land.  Neighbours and the local Council were claiming that the Applicants’ property did not have the benefit of the right of way.

The Applicants had purchased plots on the undeveloped part of a site, for residential development.  Other parts of the site had been sold off years previously, and at the time, a general right of way was reserved in favour of the undeveloped part.  When the remaining plots were finally sold off to the Applicants, no express rights of way were reserved.  The local Council was also maintaining that the undeveloped site was earmarked as open space and was subject to Section 106 Agreements, which effectively overrode any private rights of way.

The case raised a number of issues as regards the approach to be taken in constructing an express easement in a document, and issues of enforceability.

  • The Tribunal confirmed the literal approach previously taken by the courts in constructing an express easement / right of way. Very clear words or phrases need to be used to limit or restrict an easement.
  • Surrounding or background circumstances are relevant factors in interpreting an easement. The Council maintained the existence of Section 106 Agreements over the undeveloped site was highly relevant in assessing the parties’ intentions.  The Tribunal decided again the background factors had to be very clear-cut for any inferences to be drawn.  The mere existence of statutory rights in itself is not sufficient.
  • With a plot sale or sale of part, any rights of way benefiting the land as a whole will automatically be reserved to the plots or parts sold off.
  • The Tribunal decided that it did have the power impose conditions or limitations on a right of way, which was within its jurisdiction. However, in this case it chose not to do so.

Implications

  1. The whole point of creating express easements (right of way) is to create certainty. The approach taken by the Tribunal when interpreting the document granting the express right reinforces this.  If a more liberal approach was to be taken in interpreting documents / treating background circumstances, this could open up a “Pandora’s box” in widening the scope to challenge express rights.
  2. The assumption has been that on a sale of part or a plot sale, any rights benefiting the land as a whole will automatically be passed on or transferred to the parts sold off. However, this has been a grey area, as the last English case on this point was back in the 1870s.  The Applicants had to rely on more recent Australian cases.  The Tribunal has now given welcome guidance or reassurance that this is indeed the case.
  3. Whilst the point as regards the Tribunal’s jurisdiction is mainly of interest to practitioners, it could be of importance in the future as the Tribunal has taken the view that both it and the courts can impose limitations on the use of the right of way. However here the Tribunal decided no such limitation could be inferred.

(1) Nur Awan (2) EEJ Estates Ltd – v – (1) Lesley Merrill (2) Hertsmere Borough Council was heard in the First Tier Tribunal (Property Chamber – Land Registration Section) via a remote hearing on 15/16th December 2022.  Edmund Walters of 42 Bedford Row appeared on behalf of the Applicants instructed by Healys LLP. 

For further information on the above or advice on any other property related matter, please contact enquiries@healys.old-website.shout-loud.co.uk