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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 Plc v Liverpool & Lancashire Properties Ltd (2001) 81 P&CR 20:
  • Not every interference with a right of way is actionable. The owner of the right may only object to activities, including obstruction, which substantially interfere with the exercise of the defined right as for the time being is reasonably required by him.

  • The question whether the owner reasonably requires to exercise his right in a particular way is to be addressed by reference to convenience, rather than necessity or even reasonable necessity.

  • Thus, if an obstruction interferes with a particular mode of exercise of the right which is neither unreasonable nor perverse of the owner to insist upon, then the obstruction will be an actionable interference even if there remain other reasonable ways of exercising the right which many, or even most, people would prefer.
Briggs J continued:
    “As Blackburne J put it: ‘the test of an actionable interference is not whether what the grantee is left with is reasonable, but whether his insistence on being able to continue the use of the whole of what he contracted for is reasonable’. In the context of an easement acquired by prescription rather than by contract or written grant, it is common ground that Blackburne J’s phrase ‘the whole of what he contracted for’ may be substituted by the phrase ‘the whole of that which he has obtained by prescription’”.
Briggs J added:
    “it is well established that a vehicular right of way acquired by prescription does not confine the owner to enjoyment only by the types of vehicle in current use during the period when the easement was acquired. Thus, in Lock v Abercester Ltd [1939] 1 Ch 861, a vehicular right of way had been acquired by long use with horse-drawn carts. It was held to be legitimately enjoyed, much later, by mechanically propelled vehicles. In my judgment, the converse is also true. Where, as in the present case, developments in agricultural machinery have led to a situation where machinery used during the period of acquisition of an agricultural right of way by prescription have been largely replaced by more modern types, the owner is not thereby deprived of the right to continue to use the right of way for what has become an old-fashioned type of machinery, at least for as long as his use of it cannot be characterised as unreasonable or perverse.”
Deviation

Introduction

A servient owner has no right to alter the route of an easement of way unless such a right is an express or implied term of the grant of the easement or is subsequently conferred on him; but if the route is altered the dominant owner's easement entitles him to use that route (Greenwich NHS Trust v London & Quadant Housing Association [1998] 1WLR 1749).

Deviated route as good as original

Heslop v Bishton [2009] EWHC 607 (Ch)

Summary

Although providing an alternative route for a right of way does not prevent an obstruction of the existing right of way from being actionable in principle, it might lead the court to exercise its discretion in favour of not granting an injunction.

Facts

This case concerned a right of way (around 41 inches wide) to the south of some houses, including one owned by the Appellant (the servient owner). The right of way led to a passageway to the side of the Appellant’s property, which the householders were also entitled to use. The Appellant built a wall and pillars to make a gateway on his land immediately to the south of the passageway strip. This left only around 16 inches of the right of way in that area.

The Appellant argued that those using the right of way were not limited to the 16 inches remaining of the right of way, as it was possible to step on a small piece of his land in order to use the full width of the area. The Appellant submitted that this created an acceptable deviation of the right of way which meant that there was no obstruction. He therefore appealed against the first instance decision that (i) he had committed a substantial interference with the right of way and (ii) the Respondents would be allowed to cross the Appellant’s land not subject to the right of way in order to make effective use of the gateway.

Decision on appeal

The appeal was dismissed. The Court distinguished the Respondents’ position from cases where the erection of a gate has been held not to amount to a substantial interference with a right of way where the gate is left open or a key is provided, on the basis that such cases allow a right of way to continue to be used with equal convenience. The Court noted that, although a servient owner can unilaterally grant an additional right of way over an alternative route, he cannot unilaterally alter an existing route. The Court therefore concluded that providing a new right of way did not prevent an obstruction of the existing right of way from being actionable in principle.

The Court noted that case-law relating to deviated rights of way showed that the existence of an equally convenient alternative right of way might affect the Court’s decision as to whether to exercise its discretion to grant an injunction to protect the right of way, in particular where an obstruction does not cause the dominant owner to lose anything of value. )). HHJ David Cooke sitting as a High Court Judge in Heslop at para 25:
    "It follows therefore necessarily in my view from the rule that the servient owner cannot unilaterally reroute a right of way that he cannot by provision of a new right of way prevent acts of obstruction of the old route from being in principle actionable. The availability of the new route goes to remedy, but does not extinguish the original right. Where an equally convenient alternative route is available, the court may decline to grant an injunction to enforce use of the original route, but there is no reason in principle why it should not grant other relief, such as a declaration as to subsistence of the right or, as was contemplated in the Greenwich case, compensation."
However, the Court felt that there was no reason why other relief such as a declaration or compensation should not be awarded in such circumstances, especially where the dominant owner would otherwise be left with an alternative route via a less secure legal mechanism than the original right of way. The Court was concerned about such a risk in this case, given that the Appellant had sought to address the position by offering only a limited licence to the Respondents in respect of the alternative right of way, which would leave their position uncertain at the expiry of that consent. The Court therefore agreed that the declarations given at first instance were appropriate and dismissed the appeal.


Electricity

Cardwell v Walker
[2003] EWHC 3117(Ch)
Neuberger J.

Facts

The claimants were tenants at a holiday village in Cornwall. Under their leases they had the benefit of an easement
    " ... to run water and electricity and other services through pipes, sewers, drains, cable, lines and wires which are not situate upon any part of the said estate or which may hereinafter be substituted therefore."
Initially they had uninterrupted access to electricity from a substation on adjoining land. L paid for the electricity and was reimbursed by the tenants by means of coin-operated meters. Subsequently L and the tenants came to an arrangement whereby the coin-operated meters were replaced by card-operated meters that used pre-purchased tokens. In 2000 there was a dispute over an increase in electricity charges during which L initially stopped selling tokens. After a period L started selling them again but only for one-hour per day, and after a further period for only 15 minutes per day. T's brought a claim seeking various remedies including damages.

Held

This was a substantial interference with the tenants rights and L was ordered to sell tokens on site between 9am and 5pm every day. L's argument that this wrongly imposed a positive obligation, which is not allowed in the case of an easement, was rejected. Prior to the agreement to change to card-operated meters the tenants had had uninterrupted access to electricity. The agreement to change to a different method of re-imbursement could only be understood on the basis that the tokens would be made reasonably available to the tenants on reasonable terms and at reasonable times and places. Nominal damages for breach of contract were also awarded but aggravated damages were not appropriate.


Interference with parking rights

Saeed v Plustrade Ltd
[2001] EWCA Civ 2011

Lessee of a flat entitled under her lease in common with all other persons entitled to the like right to park his private motor car on such part of the Retained Property as may from time to time be specified by the lessor as reserved for car parking when space is available and subject to such regulations as the lessor may make from time to time.

The complete inability of the lessee to park in the forecourt area for a period of over three years whilst refurbishment works were carried out was a clear derogation from grant. A subsequent reduction from 13 spaces to four was also a substantial interference with her rights.


Non-derogation from grant

No obligation to take positive steps

William Old International Limited v Arya
[2009] EWHC 599 (Ch)

An easement to ensure the free and uninterrupted passage of utilities to the claimant’s land across the defendants’ land did not impose a positive obligation on the defendants to enter into a deed with the electricity company EDF. The doctrine of non-derogation from grant cannot be used to oblige a grantor to take positive steps, other than to discontinue and/or remove the result of his derogating conduct.


Obstacle on adjacent land

Waterman v Boyle
[2009] EWCA Civ 115

Summary

The Court of Appeal declined to find an actionable obstruction of a right of way where the obstacle complained of was on adjacent land and constituted a reasonable use of that land.

Facts

The parties to these proceedings were neighbours. The access and parking rights enjoyed by the claimants' property were limited by the original transfer. The claimants shared rights of access for vehicles via two routes: one across part of an entrance drive at the north end of their property and the other across part of a lane to the rear of their property. The claimants also had the right to park cars in two designated parking spaces close to their front door.

The defendants built a wall close to the rear lane, which made it impossible for the claimants to turn their cars from the lane into the garage at the rear of their property. The claimants complained that this wall breached their right of way along the lane.

At first instance, the judge held that the rights granted to the claimants over the rear lane had to be interpreted purposively, so as to give a right of access of sufficient width to permit reasonable use by vehicles.

Decision

The Court of Appeal disagreed; it found that the true interpretation of the transfer was that it granted a right of access of fixed location. Moreover, although the defendants had granted permission for the claimants to build a garage, there was no express agreement to extend the right of access accordingly and the court refused to imply one. (The court pointed out that the claimants' predecessor-in-title had experienced no difficulty in accessing the garage with her smaller vehicles.)

Although the court was not prepared to accept the submission on behalf of the defendants that an act on adjacent land could never interfere with a right of access, it noted that the circumstances would have to be "quite exceptional".

Here, the building of a boundary wall on the land adjoining the rear lane was regarded as "an ordinary and reasonable user of land". Moreover, the court noted that the claimants would have no difficulty in accessing the garage if they made some alterations to it (e.g. an “up and over” door) and it felt that was not reasonable for the claimants to insist upon a right of access without making such alterations.

In the circumstances, the court held that there was no substantial interference with the claimants’ right of way so as to render it actionable, even though the defendants had been aware when they built the wall that it would hinder the claimants in accessing their garage.

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