Breaches of Rights of Access
09 April 2012
When a landowner has land with an easement over it (i.e. others have the right to pass over the land) and the easement is abused by one of the people with that right, what can the landowner do?
This question was addressed by the Court of Appeal in a recent case. It involved a landowner who sold a field with the benefit of a right of way to the main road over an unmade access road. The access was permitted for agricultural purposes only.
The field was later sold off in parts, so that there were a number of owners. Several of the parcels of land were used as a gypsy caravan site. The access road was subsequently used by cars, lorries and vans and was also used to transport the material necessary to create hard standing for the caravans.
This use was a breach of the terms of the right of way under the easement. The owner of the unmade road obtained several injunctions against the misuse of the access road but these were all ignored. So, he decided to take matters into his own hands and had four large concrete blocks put on the road to obstruct the right of way. This was contested by the owners of the various parts of the field, but the High Court agreed that the only effective way to prevent breaches of the terms of the easement was to block the road.
One of the owners, Mr Cash, appealed the decision. Although he had temporarily breached the terms of the easement in order to bring hard standing material onto the site, he had subsequently complied with the terms of the easement and was willing to accept the use of the road for agricultural purposes only.
The Court of Appeal considered that Mr Cash did have the right of easement and the action of the owner of the road had prevented him from exercising that right. The fact that other people had persistently breached the terms of the easement could not justify denying a legitimate exercise of his rights to Mr Cash.
However, the Court did not overturn the decision altogether, but substituted instead an order allowing the obstruction of the road for vehicular access until Mr Cash (or a subsequent purchaser of or tenant on his land) could demonstrate that it was to be used for agricultural purposes only.
The decision of the Court in this case was a practical solution to a practical problem. To keep on granting injunctions only to have them ignored would be pointless. To open the road would inevitably mean the breaches of the terms of the easement would continue. However, the rights of Mr Cash had to be respected. The requirement that agricultural (as opposed to residential) use be demonstrated before access was reinstated was a practical solution to the problem.
If you are experiencing problems with people using your land improperly, contact us for advice.
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