Interpreting the scope of a right of way

The litigation in McGill v Stewart [2020] EWHC 3387 [QB] concerned the user of a long, narrow private lane in Buckinghamshire. The roadway served, and was the sole means of access to and egress from, three separate properties that had originally formed a single plot. The land had been divided up and sold, and the transferors had granted the purchaser of Walnut Cottage a right of way on foot and “with or without private motor vehicles” along the lane. It was now claimed that the current owners of the cottage had subjected it to “misuse” by allowing it to be used by heavy plant and machinery and HGVs, for the delivery and removal of materials from Walnut Cottage and its surrounding land. Consequently, the court had to decide what the expression “private motor vehicles” actually meant. In Waterman v Boyle [2009] EWCA Civ 115, the court suggested (while considering a slightly different point) that the expression did not include vehicles used by commercial visitors, such as plumbers. But the court did not find this, or the DVLA’s interpretation, or the interpretation used by the local authority in connection with planning permissions, particularly helpful. The judge refused to accept that the right of way was limited solely to vehicles owned and used by the occupiers of Walnut Cottage for domestic purposes only. If the owners and occupiers were unable to receive post, milk and other deliveries, emergency medical access, and family and friends at home in a country location at the end of a long lane, or to receive tankers to empty their septic tank (subject to the capacity of the lane), the right of way would be substantially inconsistent with use of the property as a “private dwelling”. The transfer also contained covenants that the transferee would not “carry on or permit any trade business or profession on the property”. But the judge refused to accept that the covenants prevented tradespeople from visiting and carrying out repairs so that the property could continue to be used as a dwelling. In the judge’s view, the expression “private motor vehicles” had to be construed to mean vehicles, including bicycles, “using the lane for the purposes of the use of the private dwelling on the land”. Did this permit use for absolutely any purpose, so long as such use was connected with the use of the land as a private dwelling? Could, for example, construction vehicles and tankers pass and repass in order to carry out demolition, construction and improvement work, such as the construction of a swimming pool, so long as the work was connected to the dwelling and the use of it as such? The judge rejected this interpretation too. One would expect the owners of Walnut Cottage to seek permission for such use and to pay for repairs, if permitted extra access were to cause damage. The judge was unable to impose a process for seeking approval for unusual usage and making good. But she noted that the lane could not sustain vehicles that were wider than 2.6m and suggested that vehicles should not exceed 10 tons in laden weight (unless the legal weight limit for the public highway adjoining the lane was lower). And she urged the parties to think creatively about the use of lockable bollards to restrict width, a simple vehicle weight measuring strip, CCTV, road bumps – and alternative dispute resolution in particular. Allyson Colby, property law consultant