Convenience and not necessity is the test as to whether interference with a right is actionable.
The Case: Emmett v Sisson [3 February 2014] concerned proceedings brought to prevent the alleged interference with a right of way that would be caused by the construction of a wall. Of interest was the analysis of whether the beneficiaries of the right were entitled to gain access to their land all along the length of the right of way, or only at certain points. If the right applied throughout its length, the court had to consider whether the proposed wall would constitute an actionable interference with the right, even though it allowed for vehicular access to the beneficiaries’ property.
The Sissons and the Emmetts owned neighbouring properties. A private driveway, owned by the Emmetts, ran along the boundary between the properties. The Sissons benefited from a right of way along the driveway (some 30 metres long), with or without vehicles, for all reasonable purposes in connection with their house. Relations between the parties soured when the Emmetts dug a 75cm wide trench along the driveway’s northern boundary. The trench was filled with concrete, which could provide a foundation for a two metre high brick wall.
In 2011 the Emmetts informed the Sissons that they intended to build the wall and the Sissons sought a permanent injunction to prevent the Emmetts doing this. The county court decided in the Sissons’ favour and the Emmetts appealed. The Emmetts sought declarations from the Court of Appeal entitling them to create the wall, but with a single vehicular access to be made in the wall.
The Court found for the Sissons, meaning that the Emmetts cannot construct the wall. The Court first considered the extent of the Sissons’ right. This depended on the language of the document granting the right, construed in the context of the circumstances surrounding its execution. The right was stated to be “over and along the accessway” and, while there was language that limited the purposes for which the right could be used, it did not limit its physical extent. Linear access was granted along the entire boundary and nothing limited the access to any one point or a number of points.
The Court then considered whether the wall with the access point would constitute an actionable interference. For this to be so, there had to be substantial interference with the reasonable use of the right. The test is whether the Sissons’ insistence on being able to continue the use of the entire right is reasonable. Even though they have the “relative luxury” of an ample right over 30 metres, they should not be deprived of the right, merely, because a reduced right would be all that was reasonably required.
The question was whether the right could be substantially and practically exercised as conveniently after as before the construction of the wall. While the proposed wall would provide vehicular access through one entrance, it would restrict both pedestrian and vehicular access. The Sissons would not be able to access their land from any point along the right with the same convenience as they currently could. So the wall, even with the entrance, constituted an actionable interference.