Ensure That A Right Of Way Fits The Bill

Developers are fully aware that it is essential for them to ensure that a development site has the necessary right of way to and from a public highway. Without an appropriate easement there is a very detrimental impact on the value and mortgageability of the development site.

A recent Court of Appeal decision is a reminder that even where there are express rights of way "at all times and for all purposes" this may not be sufficient if a developer is planning a material increase in the frequency with which the right of way is exercised.

In the recent Court case, the owner of the route of the right of way argued that the proposed change of use in the site from grazing and storage to residential use in the form of three dwellings was not acceptable as the right was limited to agricultural use only. He also argued that the increased intensity of the use exceeded what was reasonably tolerable and would amount to a nuisance.

On the first point the Court held that the plain words in the grant of the right of way should be taken to mean what they said. The right was for all purposes. It was quite open for restrictions to be added to the easement and as there were none stated, none should be implied.

However, as far as the intensification argument was concerned, "all purposes" did not authorise use to a point where it became an unreasonable level of interference. The Court was prepared to find that the level of interference caused by a change from agricultural to residential use by three dwellings was excessive.

Although an express grant of the right of way had been given, this did not cater for the proposed development. Case law has shown that if it can be proved that the parties knew of the proposed development at the time the grant was made, this might be sufficient to give the rights needed.

Before embarking on any development that relies on a right of way over adjoining land, it is essential that the developer checks that the right is sufficient to...