Should you go to Court to enforce your right of way?
A recent case makes going to Court over excessive right of way less straightforward than before. What should you do? Let’s find out more.
A right of way is a clause in a property’s Title Register that allows a person (or group of people) to use a piece of land for a specific purpose, even though they don’t own it. A right of way is often found when two adjoining properties are owned separately by different parties and share a driveway, for example. Most of the time, these rights are quite straightforward and easy to administrate, but problems can arise when the landowner feels that the other party is using their right of way excessively.
A recent case illustrated this point, but the Court’s decision could lead to unpredictability in the future. In this article, we’ll look at this case and how it might affect you if you want to enforce your right of way.
Bucknell vs Alchemy Estates Ltd
The recent High Court case concerned a driveway leading to a farmhouse and an adjacent yard. The farmhouse and the yard, which used to be together, are now owned by different people, and the owners of the yard have right of way over the driveway, which is owned by the farmhouse owner.
The dispute began when the owner of the yard – a developer – announced plans to turn the yard into residential homes. The farmhouse owner believed that the right of way over their driveway would be used too much, firstly by construction vehicles and then by the people who live in the new homes. So, they went to Court.
The result
The High Court decided in favour of the developer, stating that the driveway would not be used excessively. In reaching this verdict, the Court considered the developer’s specific plans, as well as weighing up previous decisions on similar issues.
The Court found that the original right of way, created in 1972, allowed for the uses planned by the developer. The Court was also happy that the driveway would not be physically damaged during the construction work, and that the new properties would not cause a nuisance to the farmhouse owner.
No precedent
The way the Court came to this decision showed law experts that, when assessing cases involving right of way, the judge will look at the individual circumstances of the situation rather than rely on precedent. It’s likely that the case will centre on evidence from experts, as it was in the driveway case.
This makes it unpredictable for people looking to enforce their right of way, whether they're the landowner or the holder of the right of way. Just because the developer in the aforementioned case left with their right of way intact, not every developer will be so fortunate.
Talk to your solicitor
This case highlights the intricacies of rights of way and the balance you need to strike between development and allowing reasonable access. If you’re a property developer or owner dealing with a right of way dispute, the best policy is to avoid litigation, where things could get unpredictable.
The key is having an experienced property solicitor in your corner. Your solicitor will be able to study the original rights of way and the circumstances that created it, explaining it to you in simple language. They’ll advise you on your best course of action and attempt to settle any dispute. But, if litigation becomes the way forward, they’ll be there to protect your interests.
Don’t try to pursue your case alone. Talk to your solicitor straight away.
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