The parties disputed the extent of a right of way, the claimant appealing against the rejection of his claim for ‘swing space’ alongside the right of way.
Held: The appeal failed. Elias LJ said that the ‘argument for swing space fails. That is not to say that it could never be the case that a purposive interpretation of an express grant, having regard to the purpose for which the right was granted, could justify a construction extending the width of a track beyond its physical dimensions. But in my view before the court could consider this possibility there would need to be cogent evidence that a narrower construction, concentrating on the physical features of the land, would not achieve the objective which the parties must have intended. In this case there is evidence that some agricultural machinery can use the track without difficulty.’
The court was severely critical of the readiness of lawyers to run up very substantial and disproportionate legal bills. Ward LJ said: ‘I wish particularly to associate myself with Elias LJ’s pointing out that this is a case crying out for mediation. All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come.’
Ward, Stanley Burnton, Elias LJJ
[2012] EWCA Civ 267
Bailii
England and Wales
Citing:
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 – White v Richards CA 1993
A right had been granted to ‘pass or repass on foot and with or without motor vehicles over and along the track coloured brown on the plan so far as the said right may be necessary for the use and enjoyment of the retained land.’ The county court . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – Stanton, Mills; Mills v Blackwell and Blackwell CA 15-Jul-1999
Two strips of land were adjacent but separated by a wall with a gate. The owner of one plot was given broadly phrased rights of way over both strips. He removed part of the wall over the neighbour’s land in order to make full use of the wider strip. . .
Cited by:
Cited – Faidi and Another v Elliot Corporation CA 16-Mar-2012
Tenants appealed against a refusal of of the ourt to make an order requiring the landlord to enforce a covenant as against a co-tenant said to be causing a nuisance. The co-tenant had, with the landlord’s consent installed wooden floors through . .
Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board Admn 20-Jan-2014
Four barristers challenged, by a judicial review, a decision by which the LSB approved an application proposed by the BSB jointly with two other approved regulators, the SRA and IPS, to introduce the Quality Assurance Scheme for Advocates . .
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 . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 11 November 2021; Ref: scu.452135