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.
Held: The submission failed. In descriptions of rights of way there was to be implied ‘some degree of tolerance’. Under the ordinary law of easements, the grant of an easement implies also the grant of ‘swing space’
Megarry J said: ‘Mr Mottershead went further; he claimed the right to the use of a sufficiency of space in which to swing or otherwise manoeuvre the goods that are being loaded and unloaded. During the argument I ventured to call this right by the convenient but inelegant name of a right to ‘swing space,’ though I readily acknowledge that this has nothing save brevity to commend it. Mr. Mottershead could cite no authority to support him in this claim, but rested it on implication.
This is a far-reaching contention. It seems to me that the alleged right ought to be analysed into the two sub-heads of lateral swing space and vertical swing space, the latter embracing only what is vertically above any part of the way, and the former extending horizontally beyond the vertical lines bounding the way. Let me take lateral swing space first, and assume as an example the grant of a right of way over a roadway eight feet wide. Let me further assume that there is no wall or hedge on either side. If there is an implied right of lateral swing space, the servient owner can never erect any wall or building abutting on the roadway lest it interfere with the dominant owner’s rights. The dominant owner is, on this view, entitled not only to ingress and egress over the eight feet road, and to occupy it with stationary vehicles being loaded or unloaded, but also to have a strip on either side of the roadway, of indefinite dimensions which depend on the size and *895 manoeuvrability of the goods which he or some successor in title of his may later choose to receive on the dominant tenement or despatch from it, kept free from any obstruction which might hinder the loading or unloading.
I can well see that on the grant of a right of way the grantor must accept that over the way granted he cannot thereafter exercise rights which materially interfere with the enjoyment of the easement. It may perhaps be that he must allow some degree of tolerance for wide loads, so that he cannot fence or build up to the very edge of the way granted, but must leave a freeboard of a foot or two, particularly if there are bends in the way. But that is very different from saying that the grant of a way may in effect sterilise a strip of land of indefinite depth on each side of the way, depending on the loads and methods of loading from time to time adopted. This seems to me to go far beyond any necessary or reasonable expectation or implication; and quite apart from the absence of authority on the point, it seems to me that such a right would or might subject the grantor to a quite unjustifiable burden. I accordingly reject such a claim.’
Judges:
Megarry J
Citations:
[1968] 19 PandCR 890
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 – 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 – B and Q Plc v Liverpool and Lancashire Properties Ltd ChD 26-Jul-2000
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: . .
Cited – Oliver v Symons CA 15-Mar-2012
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 . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 09 May 2022; Ref: scu.220696