The plaintiff had acquired land to build a hospital, which would require re-alignment of a link road, over which the defendants had rights of way. The land was also subject to a restrictive covenant in favour of the defendants. The defendants did not object, and the re-alignment of the right of way would improve the safety and convenience of access to the public highway. The plaintiffs wanted to protect themselves against possible objections in the future to re-alignment of the right of way or change of use of the land, and applied for declarations that the defendants would not be entitled to an injunction to restrain the proposed re-alignment, and that their rights if any would be limited to an award of damages for interference with the right of way or compensation for breach of the restrictive covenant. The application was unopposed save for one of the defendants, who sought only to preserve a possible right to compensation, and with whom a formula for that purpose was agreed.
Held: There was no right in law to re-align the right of way, but in the circumstances it was appropriate to grant the declaration. The fact that there was no reasonable objection to the re-alignment, that the defendants had had notice and made no objection, and that the re-alignment was necessary to achieve ‘an object of substantial public and local importance and value’ in the provision of new hospital were relevant: ‘In short the law is sufficiently adaptable and responsive to the needs of litigants in proper cases . . to grant declarations which are necessary to dispel uncertainties and remove obstacles to progress and to legitimate activities.’
Citations:
Times 11-Jun-1998, Gazette 03-Jun-1998, [1998] 1 WLR 1749, [1998] 3 All ER 437
Jurisdiction:
England and Wales
Citing:
Cited – Brown v Heathlands Mental Health National Service Trust 1996
. .
Cited by:
Cited – Well Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
Cited – Ford-Camber Ltd v Deanminster Ltd and Another CA 24-May-2007
The parties disputed the compensation for the diversion of a right of way. The right was over a service road connecting the land with the highway. If the land was acquired by the development authority under section 104, and was carried out by a . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 28 April 2022; Ref: scu.81013