decisions

When investigating the access to any development site it is always important to consider whether the site is directly accessible from the public highway or, if not, that the site benefits from a suitable right of way over any intervening land belonging to a third party.

So far, so straightforward, however when relying on a right of way it is important to check that the right of way benefits the entire of your development site and not just part of it.

For example, where your site was historically in different land holdings, you may find that a right of way only benefits part of your site. If this is the case then, counter-intuitively, while you may have a right of way to get to, say, the front half of your site, you cannot use that right of way to access the back half of your site – even though the back half abuts the front half and in practice you can freely walk between both halves of your site.

The leading Court case on this issue is from 1904[1] and it has been regularly approved ever since, most notably by the Court of Appeal in 2001[2].

To illustrate the logic behind this decision, imagine you grant a right of way across your front garden to enable a neighbour to access her house to the rear of your home. If the neighbour then buys the field next to her house and erects 50 new houses, you would be understandably perturbed if the neighbour proposed to use the right of way across your garden to access her housing development [3].

That said, the Court is clear that it doesn’t necessarily matter whether the use of the right of way for additional land actually results in an increase in traffic:

“The authorities indicate that the burden on the owner of the [land over which the right of way is granted] is not to be increased without his consent. But burden in this context does not refer to the number of journeys or the weight of the vehicles. Any use of the way is, in contemplation of law, a burden and one must ask whether the grantor [of the right of way] agreed to the [beneficiary] making use of the way for that purpose.”[4]

So the lesson here is to take care when relying on existing rights of way and, if acquiring new rights of way, consider what additional land (that you may not yet own) that you might want the right of way to benefit.

This post was edited by John Kiff. For more information, email blogs@gateleyplc.com.

Footnote 1: Harris -v- Flowers & Sons [1904] 74 L.J. Ch. 127 at 132

Footnote 2: Peacock -v- Custins [2001] 2 All E.R. 827

Footnote 3: in this example there is also other issues to consider such as whether the use of the right of way has been intensified… but that is for another blog post!

Footnote 4: Schiemann LJ in Peacock -v- Custins


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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.