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Substantial interference

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Substantial interference

On this page we cover the general principle that the owner of the servient land (the land subject to the easement) must not substantially interfere with the right enjoyed by the owner of the dominant land (the land with the benefit of the easement) and what that means, together with the following:
  • Deviation of the route.
  • Electricity supply.
  • Interference with parking rights in a block of flats.
  • Non-derogation from grant - no obligation to take positive steps.
  • Obstacle on adjacent land.

General principles

The starting point is Petty v Parsons [1914] 2 Ch 653
    ".. in the case of a private right of way the obstruction is not actionable unless it is substantial. There must be a real substantial interference with the enjoyment of the right of way. It is contended by the defendant that any gate which interferes with the full and absolute enjoyment of any and every inch of way is per se and necessarily an obstruction in respect of which he was justified in pulling down, as he did, this gate…. It seems to me that this is a case in which the defendant was absolutely wrong in saying that no gate could be erected there … In my opinion what we ought to do is to discharge the judgment in the court below, declare that the plaintiff is entitled to erect a ten-foot gate which will be kept open during business hours, an unlocked gate, so that after business hours it can be opened in case of need; but to limit her right in that way.
Lord Scott at paragraph 45 in Moncrieff v Jamieson [2007] UKHL 42:
    ".. an interference by the servient owner with the dominant owner's exercise of the servitude will not be an actionable interference unless it prevents the dominant owner from making a reasonable use of the servitude. Thus, for example, the erection by the servient owner of a building that encroached by, say, one foot on to a ten foot wide domestic driveway would not constitute an actionable interference with a right of way over the driveway (see Pettey v Parsons [1914] 2 Ch 653 and Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204)."
More recently in Zieleniewski v Scheyd [2012] EWCA Civ 247 Briggs J set out the law in the following way (at para 11), citing the dicta of Blackburne J in B&Q ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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