Disputes about land come in all sorts of guises. Sometimes, the issues relate to a claim for adverse possession, identifying a boundary line, infringement of an easement, such as a right of way or drainage, and/or harassment and intimidation. Sometimes all these issues are encountered.
Needless to say, these situations can be very stressful. Sadly, when it comes to issues of harassment, all too frequently, civil remedies need to be pursued. It is equally sad when mediation does not achieve a resolution as this is likely to mean a trial is invariably inevitable unless a compromise solution can be found.
The writer is dealing with a matter which involves all of the issues mentioned, and more. The dispute relates to a narrow country lane. Whilst my clients accept that the opponent has a right to use the lane for pedestrian and vehicular purposes, they allege, amongst other things, that the opponent is using the lane in an excessive way, by virtue of the volume of traffic along the lane created as a result of the opponent’s activities. The writer will not go into the specific details of the case as the matter is ongoing and will need to be heard before a Judge in due course.
The ultimate remedy sought is an injunction to prevent the activity causing excessive use of the lane.
When considering an easement of a right of way, allegedly created by Deed of Grant, it is necessary to consider whether the Deed of Grant is effective in granting the easement. If not, it is necessary to consider whether the easement was acquired by way of prescription (use of the easement for at least 20 years). The nature, quality, and physical extent of the right of way is determinable by reference to the historic use of the lane.
An important question to consider is how the court approaches the thorny question of what excessive use amounts to in circumstances where a Deed of Grant provides an easement of a right of way ‘at all times and for all purposes’. Lord Denning provided guidance in the Court of Appeal decision in the case of Jelbert v Davis in 1968. The circumstances of that case related to a proposed caravan site which could result in approximately 200 caravans being used on the site. The Court of Appeal decided in favour of those individuals who would be inconvenienced by the amount of potential traffic arising from the number of caravans. The Court of Appeal made it clear that it is a question of fact and degree as to whether the use amounts to substantial interference of the right of way, and that a right of way ‘at all times and for all purposes’ does not mean the right is an unlimited right.
Clearly, what will be excessive use will vary from case to case. In the writer’s view, what amounts to ‘substantial interference’ cannot be based on the level of traffic using the right of way in isolation, and the manner in which the right of way is used must also be considered. If, for example, when considered alone, the volume of traffic is not so high to be considered excessive use, but the manner in which the vehicles are driven (e.g., excessive speed, reckless driving, driving over and cutting up verges and the like) is potentially hazardous, then it is difficult to see why such use is not considered excessive and a breach of the easement. Use of a right of way in such manner is surely contrary to what Lord Denning described as ‘a right to be used in common with all other persons’. Ultimately, the Judges will approach each case on its facts and hence it is important that the factual evidence is as comprehensive as possible and made available to the court.
Paul Magee has a wealth of experience advising clients on a wide range of land disputes, including claims concerning adverse possession, boundary line disputes, infringement of easements and harassment and intimidation by a neighbour. If you are involved in a land dispute and would like an initial chat, please contact Paul, Head of Dispute Resolution, on 0161 667 3686 or at paul.magee@prosperitylaw.com
