Maioriello & Others v Ashdale Land & Property Company Limited

 

The Message

A lawful user of an easement cannot be punished for other users’ unlawful use.

The Case

Maioriello & Others v Ashdale Land & Property Company Limited considered the unusual issue of whether a landowner, subject to a right of way, could block a benefiting party’s lawful exercise of the right, if that was the only way to prevent other benefiting parties unlawfully exercising the same right.

Ashdale owned an access road over which it had granted a right of way to the owner of adjoining land in connection with the use of the land for agricultural purposes only. The landowner sold off parts of it to various people including Mr Cash, all of whom benefited from one and the same agricultural easement.

On various parts of the adjoining land, travellers were living in caravans. An enforcement notice was issued by the local council against certain owners of the adjoining land ordering that the caravan site use should cease. Cash did not buy his land for agricultural purposes, but for use as a traveller caravan site and sought to form hardstanding for caravan plots. The council ordered that the formation of hard surfaces and any activity associated with caravan use should stop immediately.

Various injunctions obtained by Ashdale were ignored by a number of the landowners and Ashdale decided to take self help measures, placing large concrete blocks towards the end of the access road where it abutted Cash’s land. That prevented vehicular access to the site, but occupiers of caravans continued to use the road on foot and some tried to break through the blocks causing damage to Ashdale’s property.

Ashdale claimed a declaration that it was entitled to obstruct all access to the site from the road and an injunction restraining the landowners from passing along the road. Ashdale argued that the only effective permanent way of preventing repeated acts of trespass on the road was to obstruct all access to the site. The usual remedy of injunctive relief had been tried and found to be seriously wanting, because the court’s orders had been repeatedly ignored.

Cash was prepared to accept an injunction restraining his use of the road for any purpose other than agricultural, but was strongly opposed to a wider injunction. The High Court, however, accepted Ashdale’s argument and Cash appealed. The Court of Appeal decided in Cash’s favour.

Cash’s land benefited from an agricultural easement. The declaration and injunction in the High Court’s order were framed so extensively as to constitute a complete negation of that property right. Unlawful use of an easement does not destroy that property interest. Excessive use can be restrained by an injunction prohibiting use other than in accordance with the easement, enforceable by contempt proceedings. The grantor may take practical steps to prevent the unlawful exercise of the easement, which, rarely, may involve a complete obstruction of the passage where it is impossible to separate lawful from unlawful use. The court may allow the obstruction to remain, if there is no genuine need or intention to use the easement for purely lawful purposes.

Cash was not in breach of any order after December 2010 and was not likely to use the road unlawfully in the future. The remarkably wide declaration and injunction without time limits awarded against Cash was not justified, nor was it justified for the court to permit Ashdale to continue wholly to obstruct the road, preventing Cash’s lawful use under the easement, until Cash could satisfy the court that the travellers would not use the road unlawfully.

There is no legal principle that the lawful use of an easement by one benefiting party can be obstructed to prevent unlawful use of a similar easement by other parties. The Court, therefore, set aside the injunction prohibiting Cash from lawfully exercising the easement. Instead, Ashdale was entitled to maintain its obstruction only until lawful use of the road was required by Cash, when Ashdale had to remove the obstruction to the extent necessary to permit such use.