The Right of Way

As the Autumn is coming quicker than I would like and the trees at Beechdene are starting to turn that lovely golden colour I am sitting watching the pheasants running around at the back of the house where lately we have had some ramblers trying to find the footpath and even one person informing us it was through our garden. It started me wondering about if anyone else in the village was having the same sort of visitors.

A right of way is the legal right to pass over property belonging to another? They sound simple, unfortunately, all too often, they are not.

The usual question is what if a gate is placed over a right of way? Well, the test is “There is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently as before the alleged obstruction.” What will count as convenient will be a matter of fact applied to the wording of the right of way.

Ignoring defining the word “convenient” the problem is that the wording of the right of way needs to be carefully considered or is just silent.

For example, in a case from a few years ago, benefiting land belonging to a Mr and Mrs Sisson the wording was “a right of way… with or without vehicles and for all reasonable purposes in connection with the proper use of the Property over and along the access way’. The access way was a drive way (running parcelling to the Sisson’s land), along which Mr Sisson built a low wall, which could be stepped over, and he installed a gate at the end of the drive.

The owners of the drive way, Mr and Mrs Emmett, later decided to lay foundations for a 2m high wall along the boundary of the respective lands and running parallel and a few centimetres away from the low wall.

The Sissons removed their low wall and sought an injunction against the 2m wall being built arguing it would be an actionable interference with their right of way. In essence they were saying the right allowed them to access their land at any point along the land and the wall was an actionable interference on this right.

The Court of Appeal agreed, they could see nothing in the wording limiting the right to a single point of entry, and a 2m high wall would clearly prevent entry along its length.

This demonstrates how important the wording is, but as mentioned above wording being silent is the next major cause of problems. For example, this, all too often, applies to maintenance of private rights of way (public rights of way are different). Who has to repair that path when no one is mentioned? Well, no one is the answer, so the courts addressed the problem by saying a right of way comes with an ancillary right to repair and maintain.

In conclusion, there is a lot more to rights of way than first appears. This should be unsurprising given the centuries of law dealing with the points. The disputes that can arise need careful consideration from the outset.

So until next time – stay safe and stay legal.


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