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Rights of way: potential danger for developers

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The recent case of Lea v Ward acts as a reminder to developers and land owners of the pitfalls of interfering or obstructing with rights of way. If not considered early in the development process, interfering with rights of way can cause delays and unnecessary distractions. Dealing with rights of way early in the development process will minimise the risk of a major complication later down the line.

Facts

This case centred on a claim brought by Mr Lea against Mr Ward in relation to the existence and width of a right of way over Mr Ward’s neighbouring land in Shropshire. The right of way was granted by a deed in 1979 in favour of land in the current ownership of Mr Lea. The right of way in the deed was worded: ‘a similar right of way over the track or way along the south-westerly side of enclosure number 4362 that is to say between the said point D and the point marked F on the said plan’. However, the plan did not accurately identify points marked D and F. Similarly, the plan did not show any scales so it did not accurately indicate the width of the right of way.

Mr Ward obtained planning permission for a residential development and part of the works involved building a temporary fence and permanent walls, which obstructed Mr Lea’s right of way. As a result, Mr Lea sought injunctions and damages for interference of the right of way. Mr Lea’s case was that the grant of the right of way was across the whole strip of land. Mr Ward’s case was that the right of way was only across the part of the land that was a track as at the date of the 1979 Deed.

The main issues the Court had to determine were:

  1. What was the width of the strip of land?
  2. Was the right of way substantially obstructed by the fencing?
  3. Was Mr Lea entitled to damages?
  4. Was Mr Lea entitled to a mandatory injunction to remove physical structures on Mr Ward’s land?

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The court found, based on contractual interpretation and historical maps, the right of way was across a track that had been in place in 1979 and not an entire strip of land. The width of the right of way was found to be 3.75 metres along the track that was used when the right of way was granted in 1979.

It is established law that a right of way cannot be altered without express agreement and the court therefore found that the erection of the fence and building works did amount to a “substantial interference with the right of way”. Unfortunately for Mr Lea, the court found that the damages sustained by Mr Lea were minimal and the court awarded £5 in damages for the interference. The court further ruled that unless Mr Ward could offer Mr Lea an alternative right of way that was “equally convenient”, a mandatory injunction would be given requiring Mr Ward to remove certain walls erected on his land. Finally, the court made an order that Mr Ward pay Mr Lea £500 in damages for the nuisance caused by the physical structures that interfered with the right of way.

Analysis

This case highlights that developers and land owners should evaluate whether their proposed developments interfere with any easements granted over land being developed, or acquired by other means, such as prescription. If a right of way does need to be altered, the starting point might be to negotiate a variation with the beneficiary and enter into an agreement. It is best to identify any issues with easements early in the site acquisition and/or development process to avoid any complications. In this case the interference occurred in mid-2015 but the court did not give its judgement until September 2017 – a lengthy delay and distraction from the development. At the date of the judgement, Mr Ward had not been able to sell one unit and the building of two other units was on hold.

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