Disputes as to the extent of the use of a right of way are commonplace between neighbours due to unclear drafting.
Plans for a residential development on agricultural land depended on whether a right of way to the land could be used for this purpose Mr and Mrs Bee own Pear Tree Cottage in a village near Bishop Auckland. A narrow track runs from the main street down the side of the Cottage and through their back garden to land known as the Garth at the rear which is owned by Mr Thompson, a relative. A garth is a small piece of enclosed land, like a paddock or yard, which is close to a house and the Garth used to be part of the Cottage before the land was divided up in 1975.
The Garth is fallow land that used to contain a piggery and slaughter-house but these buildings had become very dilapidated and the land was just occasionally used for grazing and storage. As there was a steep drop from the gate at the rear of the Cottages garden to the Garth, it could only be negotiated by a Land Rover or cattle truck.
In 2007, Mr Thompson obtained planning permission to build 3 houses on the Garth. The Bees objected to the right of way being used for this purpose as they claimed it was limited to agricultural use and, in any event, use for 3 houses would be excessive. They won at first instance but Mr Thompson appealed.
The permitted use depended on the interpretation of the grant of the right of way. It referred to the existence of the piggery and slaughterhouse and was expressed to be a right “at all times and for all purposes connected with” the Garth. The trial Judge thought this was limited to use for agricultural purposes only as he considered the context at the time of the grant of the right of way and took particular account of the agricultural use and the reference to the agricultural buildings. He also noted the lack of any reference to a grant of a wider right than was needed for the existing use at that time.
The Court of Appeal disagreed with the Judge. It held that the reference to “use at all times and for all purposes” was a very general expression which was to be construed literally in accordance with the common usage of such wording and the only limitation was that the use had to be in connection with the Garth. The Court did not think the intention had been to limit the Garth to its old and unproductive use and prevent more profitable use in the future.
However, matters did not end there as a right of way cannot be used excessively. The Judge had held that use of this small track for accessing 3 houses would be excessive as it would interfere with the Bees’ own use of the track and the enjoyment of their back garden. The Court of Appeal agreed as a right to use for all purposes did not mean it could be used at an unreasonable level that would cause nuisance to the neighbouring owners.
The Judge was criticised for not considering whether the right of way could be used for less than 3 houses but the Court noted that no case had been put forward at trial for just 1 or 2 houses and the planning permission was for 3. Whilst a Court can give guidelines to help the parties agree what may be permissible, no material had been put before the Court to consider a lesser use but the Court hoped the parties would settle this between themselves and avoid yet further litigation.