Brooks and another v Young and another

Easement – Right of way – Access to rear of appellants’ terraced property across property of respondents neighbour – Respondent claiming use of way excessive – Whether right of way restricted to purposes for which use of front door not reasonably practicable – Appeal allowedThe appellants and the respondents owned adjoining terraced houses. They had previously occupied as tenants but had purchased the properties from the local authority under the right-to-buy legislation in 2001 and 2003 respectively. The sale to the appellants included a right of way along the side and across the rear of the respondents’ end-of-terrace property “at all times” for access to and egress from the rear of the appellants’ property “for all proper purposes connected with the reasonable enjoyment of the property”. The later sale to the respondents was expressly subject to that right.In 2006, the respondents brought proceedings against the appellants, complaining that their use of the right of way was excessive. They complained that the right of way was regularly used by the appellants and their visitors to access the rear of the appellants’ property; to take the dog for a walk; and for wheeling bicycles to and from the house. The respondents contended that the right was limited to purposes that could not reasonably be accommodated by the front door, such as putting out bins. The appellants contended for a wider right.Allowing the claim in the county court, the judge held that the reference to “proper purposes” and “reasonable enjoyment” limited the right. He granted a declaration that it could be exercised only in circumstances where the use of the front door for entering or leaving the property was not reasonably practicable. In reaching that conclusion, he considered two documents produced by the respondents as indicating the intended extent of the right. One of these was a letter from the local authority, written five months after the sale to the appellants, and indicating what the authority considered to be reasonable use of the way. The judge held that he was entitled to take that letter into account in interpreting the grant.On appeal, the appellants contended that the judge had erred both in taking into account inadmissible material for the purposes of interpreting the grant and in placing a restrictive interpretation upon it.Held: The appeal was allowed. The court’s role was to interpret the right of way that had been granted by ascertaining the parties’ intentions from the words used, in their context. Direct evidence of what the parties or either of them had intended was not admissible save if rectification were being sought. The local authority letter was inadmissible as evidence either of their intentions regarding the grant or their opinion as to what the right as granted meant.There were no grounds for interpreting the right of way as being restricted to occasions where the use of the front door was not reasonably practicable. The right could be exercised “at all times” and “for all proper purposes” in connection with the normal residential use of the property; unrestricted access and egress was permitted in connection with the ordinary use of the appellants’ property as a house. The words used were general. Had it been intended to restrict the right of way in the way the judge had found, the grant would not have been expressed in such wide terms. In using the way as they had, as part of their ordinary occupation of their property, the appellants had not exceeded the scope of the grant properly construed.Sebastian Clegg (instructed by NGA, of Colne) appeared for the appellants; Peter Goodbody (instructed by DWF LLP, of Liverpool) appeared for the respondents.Sally Dobson, barrister