Merlin Real Estate Ltd v Balaam and another
Right of way – Interference – Limitation – Claimant and defendants owning adjoining land – Claimant developing land – Claimant having right of way over access roadway running across defendants’ land – Claimant seeking declaration that use of roadway lawful – Defendants counterclaiming – Whether claimant’s development land resulting in unreasonable use of right of way by interfering with defendants’ use – Declaration granted
The claimant and the defendants were neighbouring landowners on the Wood Hall Estate near Saffron Walden, Essex, which the claimant’s predecessor and the defendants had purchased from the executors of the deceased owner and partitioned between them in 1982. The claimant had developed its land and planned to develop further; the defendants’ land was agricultural land farmed by the defendants’ family.
A dispute arose concerning the use of a roadway or track which ran across the defendants’ land. The claimant said that, at the time of the transfer to it, there were 22 dwellings on the estate, all of which had a right to use the roadway. The issue was whether the claimant’s current development of properties had resulted in unreasonable use of the right of way by interfering with the defendants’ use or, if further development took place, would result in unreasonable use of the right of way.
Right of way – Interference – Limitation – Claimant and defendants owning adjoining land – Claimant developing land – Claimant having right of way over access roadway running across defendants’ land – Claimant seeking declaration that use of roadway lawful – Defendants counterclaiming – Whether claimant’s development land resulting in unreasonable use of right of way by interfering with defendants’ use – Declaration granted
The claimant and the defendants were neighbouring landowners on the Wood Hall Estate near Saffron Walden, Essex, which the claimant’s predecessor and the defendants had purchased from the executors of the deceased owner and partitioned between them in 1982. The claimant had developed its land and planned to develop further; the defendants’ land was agricultural land farmed by the defendants’ family.
A dispute arose concerning the use of a roadway or track which ran across the defendants’ land. The claimant said that, at the time of the transfer to it, there were 22 dwellings on the estate, all of which had a right to use the roadway. The issue was whether the claimant’s current development of properties had resulted in unreasonable use of the right of way by interfering with the defendants’ use or, if further development took place, would result in unreasonable use of the right of way.
The claimant sought a declaration that its current use of the roadway was lawful and that they were entitled to use both the passing places and the verges at the side of the way. Further declaratory relief was sought that the use of the roadway likely to arise from the further development would not unreasonably interfere with the defendants’ use. The defendants counterclaimed. They accepted that the use of the roadway prior to the sale to the claimant did not interfere unreasonably with their use.
Held: The declaration was granted.
(1) The defendants were entitled to use the roadway as it fell within their land ownership. The deed of partition granted a right for the benefit of the claimant’s property expressed to be a “right in common with all other persons from time to time having the like right at all times with or without vehicles to go pass and repass”. The grant was therefore not limited to the properties that already existed on the land, and nor was it limited to any particular purpose or time.
The use of the land at the time of the grant did not restrict the use of the right of way in the manner authorised by the grant, even if the use of the dominant tenement had altered since the date of the grant. The only thing the court had to do was to construe the grant. Unless there was some limitation in the grant, in the nature of the width of the road or something of that kind, full effect had to be given to the grant, and any subsequent user could not be considered as sufficient to cut down the generality of the grant: White v Grand Hotel (Eastbourne) Ltd [1913] 1 Ch 113 considered.
(2) The owner of a right of access granted in general terms was entitled to exercise the right not only for the purposes of the use to which the dominant tenement was being put at the time of the grant, but also for any other lawful purposes to which it might later be put, although the right had to be exercised in a manner least burdensome to the servient tenement.
A right of way under an express grant was not to be restricted to such uses as were reasonably required at the date of the grant. On the other hand, such a right was limited to what the servient land could physically accommodate, because that was all that the parties could have reasonably contemplated at the time of grant. Each case would be determined upon its own facts: Alvis v Harrison (1990) 62 P & CR 10 and Bucknell v Alchemy Estates (Holywell) Ltd [2023] EWHC 683 (Ch); [2023] PLSCS 64 considered.
In this case, the court was required to construe the grant to determine whether the current (and intended future) use of the trackway fell within the grant or whether it amounted to an unreasonable interference with the defendants’ use of the roadway. The issue of fact was whether the user of the right of way had crossed the line.
(3) The use of the word “access roadway” or “driveway” in the grant did not define whether the grass verges were included or not. If the construction of the grant did not support the roadway encompassing the verges and passing bays, consideration also had to be given to the potential of there being an implied easement of necessity, and alternatively a prescriptive right by reason of their use for 20 years or more.
Given that this single-track roadway was of a length that did not allow for users to simply wait at one end or the other, and, as the evidence established, the users of the roadway pulled into the side, it was likely that, in granting the right of way over the roadway, it was part of the grant that the users would be permitted to pull into the sides (ie the grass verges) to enable vehicles to pass.
The alternative to the grant itself including use of the grass verges for the purpose of passing where necessary was that the right was implied as an ancillary easement, it being reasonably necessary for the enjoyment of the roadway. Without a right to pass each other along the roadway, the right to use it as expressly granted could not be reasonably exercised: Carpenter v Calico Quays [2011] EWHC 96; [2011] PLSCS 29 and Lea v Ward [2017] [2017] EWHC 2231 (Ch); [2017] PLSCS 178 considered.
(4) In all the circumstances, the use of the roadway by those entitled to the benefit of the grant did not unreasonably interfere with the defendants’ use of the roadway on their land. Further, on the evidence, the court was not satisfied, on the civil standard, that use of the roadway by all of those who would live on the estate (together with their visitors) once the current plans for development were complete would amount to an unreasonable interference with the defendants’ use of the roadway.
Even though the plan to the 1982 deed appeared to show that the defendants owned the whole of the area between the hedges, the parties had behaved on the basis that the claimant’s predecessor owned the grass verge to the south of the roadway. There was at least a prescriptive right established. The declaratory relief would be granted and the counterclaim dismissed.
Jonathan Gaunt (instructed by Birketts) appeared for the claimant; Andrew Bruce (instructed by Holmes & Hills) appeared for the defendants.
Eileen O’Grady, barrister
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