A right way: not as simple as from A to B

Case

The Court of Appeal in Emmett v Sisson (2014) concluded that the owner of the dominant land (the person with the benefit of the right) had a right of access to their land from any point along an accessway over a shared driveway. This stopped their neighbour (the servient owner) from building a brick wall along the boundary of the shared driveway.

The law

What constitutes interference with a right of way?

In B&Q plc v Liverpool and Lancashire Properties Ltd (2001), the Court held that the test of an actionable interference with a right of way is not the extent of the right remaining after an inference but whether the dominant owner (the person with the benefit of the right) is being reasonable by insisting on being able to use the entirety of the right granted.

So when considering whether there has been an interference with a right granted, the question to ask is “can the right of way be substantially and practically exercised as conveniently as before?”.

Private nuisance

Interference with an easement gives rise to an action for private nuisance and in order to succeed in such a claim, the person claiming interference with a right granted must show:

• Firstly, that they are entitled to the benefit of the right/easement;
• Secondly, the nature, extent, scope and use of their access that has/is being interfered with; and
• Thirdly, that the interference with their right/easement is of a “substantial nature”.

The facts

Emmett v Sisson concerned a 30 metre driveway that was sandwiched between two adjoining properties. The property owner to the north (N) owned the driveway that the right of access crossed over. The southern property owner (S) had the benefit of a right of way over that driveway to get to his property. In 1997, S built a low stone wall (which a pedestrian could step over) along the boundary of his property to the driveway’s boundary.

In 2009, N made preparations to build a two metre high brick wall along the southern boundary of the driveway, a few inches from S’s low stone wall.

S applied to the High Court for an injunction to prevent N building the wall and subsequently S removed the low stone wall that he had constructed.

The High Court examined the wording of the easement and concluded that there would be no restriction on where the entrance and exit points to the driveway could enter and exit the easement and found that:

• S could access his land from any point along the driveway (right of way)
• The construction of a brick wall by N would be an unreasonable interference with that access

N appealed the decision, asking for confirmation that he could build a wall or fence along the southern boundary of the driveway with potential for a single vehicle access, gated if possible, within the proposed wall or fence.

The decision

The Court of Appeal held that: “On their true construction, the words plainly grant a linear access along the whole of the boundary and there are no words that either expressly or impliedly limit the access to any one point or a number of points”.

Referring to the wall that N wanted to construct, the Courts’ view was that a “wall would severely restrict [S’s] vehicular and pedestrian access… to their land from any point along the right of way with the same convenience as they can now” and therefore “the proposed wall, even with a vehicular entrance in it, would constitute an actionable interference with the respondents’ right of way”.

Conclusion

It is important to remember that the extent or enjoyment of a right of way cannot be changed without the support of all parties concerned. The person who owns the land subject to the right (the servient owner) cannot seek to change, restrict or deprive the person with the benefit of the right (the dominant owner) of a right granted by arguing that a reasonable person would or could accept the change.

As ever, each case will turn on its facts but this decision is nonetheless significant for those who have rights of access across relatively open land or marked by a vague boundary feature.