Sisson v Emmett

Right of way – Extent of right – Actionable interference – Respondents purchasing property with benefit of right of way along access way contiguous with boundary – Appellants owning access way land and proposing to erect wall along boundary leaving a single gated access point – Whether right of way permitting access at any point along whole length of access way – Whether proposed wall an actionable interference with right – Appeal dismissed The appellants and the respondents owned neighbouring properties. The respondents had purchased their property in 1996 with the benefit of a right of way granted by the vendor “over and along” an access way that ran for 30m contiguously with the boundary of the property; the access way land had since come into the appellants’ ownership. The right of way was expressed to be exercisable “with or without vehicles and for all reasonable purposes in connection with the proper use of the Property as a dwelling house”. In practice, the respondents did not use the right of way to access their property but instead used a different route that crossed a part of the appellants’ land over which they had no right of way. In October 2009, the appellants notified the respondents that they intended to build a high brick wall along the boundary between the two properties so as to leave just a single, gated point of vehicular access for the respondents along the right of way. The respondents argued that the erection of the wall would be an actionable interference with their rights.In county court proceedings between the parties, the judge granted declarations that the respondents had a right to gain access to their land at all points along the length of the right of way and that the erection of the wall, with just one suitable vehicular access, would be an unreasonable obstruction of and interference with that right. The appellants appealed. They contended that: (i) the right of way should be construed as permitting access only at one or two points along the access way, which the respondents could, within reason, choose and change on reasonable notice; and (ii) the building of the wall was not an actionable interference with the right of way since it was not reasonable for the respondents to insist on exercising the right of way over its whole 30m length. Held: The appeal was dismissed. (1) Since the right of way had been created by an express grant in the 1996 conveyance, it had to be construed according to the language of the deed read in the context of the circumstances surrounding its execution. So construed, the grant of a right of way “over and along” the access way clearly granted a linear access along the whole of the boundary. The extent of the right was not limited by the wording “with or without vehicles” or by the words “for all reasonable purposes in connection with the proper use of the property as a dwelling house”. Those words limited the purpose for which the grant was made but did not limit its physical extent. There were no words that either expressly or impliedly limited the access to any one point or a number of points. That construction of the grant was supported by other terms of the conveyance, including an obligation on the respondents to fence around their property on all sides except along the boundary next to the access way; that implied a right to have free access to their land along the whole length of the access way.That conclusion was also supported by the circumstances surrounding the execution of the conveyance. It was relevant that there had previously been an open boundary and that there was no other lawful right of access to the property save over that boundary. The purpose of the grant was to enable the respondents to gain access to all the land that they had purchased. Furthermore, since the right of way was a grant, not a reservation, there could be no derogation from it unless one was made expressly or had necessarily to be implied. There was no express reservation and, in view of the express wording of the grant, there was no basis for any necessary implication: Well Barn Shoot Ltd v Shackleton [2003] EWCA Civ 02 and Pettey v Parsons [1914] Ch 653 distinguished. (2) Whether there was an actionable interference with a right of way was a question of fact in each case. Three relevant propositions applied: (i) the test of an “actionable interference” was not whether what the grantee was left with was reasonable, but whether his insistence on being able to continue the use of the whole of what was contracted for was reasonable; (ii) it was not open to the grantor to deprive the grantee of his preferred modus operandi and then argue that someone else would prefer to do things differently, unless the grantee’s preference was unreasonable or perverse; and (iii) if the grantee had contracted for the “relative luxury” of an ample right, he was not to be deprived of that right in the absence of an explicit reservation merely because it was a relative luxury and the reduced, non-ample right would be all that was reasonably required: B&Q plc v Liverpool & Lancashire Properties Ltd (2001) 81 P&CR 20; [2001] 1 EGLR 92; [2001] 15 EG 138 applied. The judge had correctly concluded that the building of the wall would be an unreasonable interference the respondents’ right of way. The respondents, as the grantees of the right, were entitled to gain both vehicular and pedestrian access to their land along the whole 30m stretch. Although that might be called a “relative luxury”, it was what the conveyance had given to them. They were entitled to exercise the “relative luxury” of the ample right to gain both vehicular and pedestrian access to their land from the access way along its whole length, unless insistence on this was either unreasonable or perverse. It would not be perverse and nor could it be described as unreasonable. The proposed wall would severely restrict the respondents’ vehicular and pedestrian access to their land. They could not exercise the “relative luxury” of their right to gain vehicular and pedestrian access to their land from any point along the right of way with the same convenience as they presently could. Accordingly, the proposed wall, even with a vehicular entrance in it, would constitute an actionable interference with the respondents’ right of way. Malcolm Warner (instructed by Gabbs LLP, of Hereford) appeared for the appellants; Nicholas Isaac (instructed by Beaumonts Solicitors, of Hereford) appeared for the respondents. Sally Dobson, barrister