Rights of way from a developer's perspective
Written by Simon Schipper
When acquiring land for development, it is vital to ensure that any existing rights benefiting the land will be sufficient to support the proposed development. Two recent cases have served as useful reminders of this.
In November 2009, the Court of Appeal decided in Bee v Thompson that a developer was to be prohibited from using a track as a right of way for the purpose of access to and from its proposed residential development.
The intended development involved building three houses on land previously used for agricultural purposes.
Despite the fact that the development site had the benefit of an express right of way “at all times and for all purposes”, the Court decided that the increase in the use of the track which would have resulted from the completed development of three houses would be excessive given that the right of way had originally been granted in connection with agricultural use.
Note that the Court did not necessarily have a problem with a change from agricultural to residential use at the site – the right of way was granted “for all purposes”. However, those words did not authorise use of the track to a point where it became an unreasonable interference with the rights of the track owners to use either that track or the rest of their property.
The Court may have come to a different conclusion had the proposed development consisted of one or two houses instead of three, but the Court had not been asked to consider that.
So, even where there are express rights of way "at all times and for all purposes" this may not be sufficient if you are planning a material increase in the frequency with which the right of way is to be exercised.
Contrast the above with the Court of Appeal decision in Davill v Pull on 10 December 2009 in which the Court considered the meaning of a right of way “for all reasonable and usual purposes”.
The site which benefited from the right of way was previously garden land and a residential development was proposed. Again three houses were to be built.
The owners of the track which gave access to the site objected to the use of the track by both the construction traffic and by the eventual new owners of the three new houses. The Court at first agreed with the track owners and declared that the developer’s use of the track was limited in connection with garden land.
The Court of Appeal had a different view. It considered the intention of the parties to the original documents which granted the right of way. The Court could not find any evidence to support the limitation on the right of way imposed by the earlier Court.
Instead, the Court of Appeal decided that the wording of the right of way was intended to prohibit all unreasonable and unusual purposes, that in this case the use of the site for the intended development was reasonable and that the developer could lawfully use the track for the intended development.
The two cases highlight that each situation will differ according to the particular circumstances. They also highlight the need to scrutinise the wording of any right of way carefully and, where there may be a residual risk of challenge, to consider indemnity insurance.
Simon Schipper
Cripps Harries Hall LLP
February 2010