Construction Of A Right Of Way

• Published date: 09 October 2023
• Subject Matter: Real Estate and Construction, Transport, Rail, Road & Cycling, Construction & Planning
• Law Firm: Gatehouse Chambers
• Author: Andrew Skelly

You are fortunate enough to own a house on a large plot of land and wish to realise some of its value by dividing it in two and building another house. Access to the plot is gained via a lane which passes over, and is part of, a neighbour's land; your land enjoys an express right of way over the lane "at all times and for all purposes with or without vehicles". Are you going to be able to use the lane for the construction traffic, and thereafter for access to the second house in addition to the current house?

The extent of an express right depends on the terms of the grant, construed in accordance with the general rules as to the interpretation of legal documents. In St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No. 2) [1975] 1 W.L.R. 468 Sir John Pennycuick said, "One must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of the surrounding circumstances."

The principles of interpretation are well settled and do not require detailed repetition. As explained by Lord Neuberger in Arnold v Britton at [2015] A.C. 1619: "When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to 'what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean', to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101, para 14..."

Lord Neuberger went on to explain that the meaning has to be assessed in the light of, among other things, the natural and ordinary meaning of the words used, other relevant provisions of the document, overall purpose, the facts and circumstances known to the parties and commercial common sense. In discussing the role of commercial common sense he emphasised again at [17] the importance of the language used, saying: "The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision" (per Falk J in Vneshprombank LLC (a company registered and in liquidation in the Russian Federation) v Bedzhamov [2022] EWHC 101 (Ch)).

The language of the grant must thus be construed in the light of the circumstances, which may include the physical characteristics of the land at the time of the grant. The...