Don't Lose Your Way! 3 Misunderstood Aspects Of The Law Of Rights Of Way

• Published date: 28 August 2021
• Subject Matter: Real Estate and Construction, Transport, Rail, Road & Cycling, Real Estate
• Law Firm: Gatehouse Chambers
• Author: Mr John De Waal QC, John Clargo, Jamal Demachkie and David Peachey

These notes follow the #HardwickeBrew given by Hardwicke's Property Team on 31 March 2021 which looked at some issues which commonly arise in rights of way disputes. All the information below was correct as at 31 March 2021.

Rights of Way

A right of way is a form of easement. The dominant owner has the right over the land of the servient owner. A substantial interference with this right amounts to a nuisance and is actionable at law.

Rights of Way & Rights to Park

Does a Right of Way imply a Right to Park?

• Most rights of way would imply a right to stop - temporarily - for the purposes of opening or shutting gates on the way.
• Whether a right of way implies a right to load and unload is a question of fact and depends on the interpretation of the grant and/or the surrounding circumstances.
• A right to 'use' may well include a right to unload (Snell & Prideux v Dutton [1995] 1 EGLR 259); a right to pass to an auction mart included a right to load and unload as this was necessary for the enjoyment of the right (Bulstrode v Lambert [1953] 1 WLR 1064).
• A full right to park can be expressly granted or implied; it is a valid easement (Moncreiff v Jamieson [2007] UKHL 42).
• It is possible for a right to park to be implied into a right of way (Moncreiff v Jamieson); however, this is likely to require 'exceptional' facts (Waterman v Boyle [2009] 2 EGLR 7).

Conflict between a Right of Way and a Right to Park

• Can Person A enjoy a right of way over land, and Person B enjoy a right to park over the same land?
• Yes, if there is no conflict (if, for example, the road is wide enough to accommodate both rights).
• In other cases, it is doubtful that the conflict would arise in law:
• • In an express grant (or reservation), the owner of a servient tenement cannot interfere with a pre-existing right of way (by either parking, or granting a right to others to park) over the way in such a manner as to cause a substantial interference with the pre-existing right.
  • In terms of prescription, it could be argued that Person B has acquired a right to park in the form of a right to cause a nuisance to Person A's pre-existing right of way. However, such a right is analogous to an easement over an easement, which is not permitted at law.
  • See Poste v Cousins [2020] EWHC 582 (Ch) for consideration of these issues.

Intensification of User

• What are the circumstances in which the easement of a right of way will be suspended or lost due to intensification of use by the dominant owner?
• The...