The dominant owner wished to deal with delivery vehicles in a manner where they were left parked awaiting emptying. The servient owner (a lessee) wanted to construct buildings over a large part of the land. The servient owner objected.
Held: Whether an easement was being subjected to an actionable interference, was answered by asking whether insistence upon the use of the entire easement contracted for was reasonable. The grantee should not be deprived of the full extent of what might appear to be an ample right only because he reasonably might require a lesser extent of right.
Blackburne J concluded that there are three propositions which can be deduced from the authorities: (1) the test of an ‘actionable interference’ is not whether what the grantee is left with is reasonable, but whether his insistence on being able to continue the use of the whole of what is contracted for is reasonable; (2) it is 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 is unreasonable or perverse; (3) if the grantee has contracted for the ‘relative luxury’ of an ample right, he is not to be deprived of that right in the absence of an explicit reservation merely because it is a relative luxury and the reduced, non-ample right would be all that was reasonably required. He summarised the third proposition as follows: ‘In short, the test . . is one of convenience and not necessity or reasonable necessity. Provided that what the grantee is insisting on is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?’.
Judges:
Mr Justice Blackburne (Vice-Chancellor of the County Palatine of Lancaster)
Citations:
Times 06-Sep-2000, Gazette 12-Oct-2000, [2001] 1 EGLR 93, (2001) 81 P and CR 20, [2000] EG 10
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Keefe v Amor CA 1965
The Court declined to limit the extent of a right of way 20 feet wide by reference to the bottleneck at its entrance from the road of 4 feet 6 inches, consisting of a pair of gate pillars and a gate of that width. The grant was over the whole 20 . .
Cited – VT Engineering Limited v Richard Barland and Co Limited ChD 1968
The court was asked whether a right of way ‘at all times and for all purposes’ over a roadway included an ancillary right to lateral and vertical ‘swing space’ in the course of loading and unloading in the exercise of the principal right.
Cited – West v Sharp CA 1999
Mummery LJ set out the test to be applied when asking whether there had been a substantial interference in the exercise of an easement so as to be actionable: ‘Not every interference with an easement, such as a right of way, is actionable. There . .
Cited – Celsteel Ltd v Alton House Holdings Ltd ChD 1985
An equitable easement (a right of way), which was not protected by any entry on the register, was a right openly exercised and enjoyed as appurtenant, in this case to a garage, and it adversely affected registered land as an overriding interest. The . .
Cited by:
Cited – Besley v John CA 29-Oct-2003
The defendant farmed land adjacent to land over which he had registered rights of common allowing him to graze sheep. The freeholders brought the action saying that the use was in excess of the rights. He counter-claimed that the extension of a golf . .
Cited – Clarke and Another v Corless and Another ChD 8-Jul-2009
The parties disputed whether one could retain for his own benefit land on an estate reserved for an estate road. A trust was claimed under Pallant saying that the parties had made an informal agreement before the property was purchased.
Held: . .
Cited – Bradley and Another v Heslin and Another ChD 9-Oct-2014
The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he . .
Cited – Emmett v Sisson CA 3-Feb-2014
Appeal against judgment in boundary dispute involving a private driveway.
Held: The appeal failed. ‘The respondents are entitled to exercise the ‘relative luxury’ of the ample right to gain both vehicular and pedestrian access to their land . .
Cited – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .
Cited – Zieleniewski v Scheyd and Another CA 6-Mar-2012
The parties disputed the existence of a right of way. Briggs J set out the legal principles involved in a claim of interference with a right of way: ‘1) Not every interference with a right of way is actionable. The owner of the right may only object . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 18 May 2022; Ref: scu.78036