Watch out for rights of way!

What is a right of way?

A right of way is a right for a person to pass over land by foot or vehicle. A right of way could be public so that anyone could use it or private so that it is for the benefit of specific people or land. If you have bought or sold land before, you may have heard of a right of way being described as an easement. An easement is a right enjoyed over one piece of land for the benefit of another.

Whether you are a developer or a potential homeowner, the recent case of Bucknell v Alchemy Estates (Holywell) Limited [2023] EWHC 683 (Ch) (‘the Case’) illustrates that failing to consider the extent of a right of way could be fatal to your intended use of the property. 

In this blog, we examine the key details of the Case and discuss what steps you can take to avoid the common pitfalls of purchasing a property that benefits from or is subject to a right of way.

The facts

The Case concerned a right of way granted in 1972 at “all times and for all purposes” over a homeowner’s driveway to get between a main road and an agricultural yard. The driveway formed part of the land purchased by the homeowner, Bucknell, in 2014, and Alchemy Estates owned the agricultural yard which benefitted from the right of way.

Alchemy Estates intended to convert the agricultural yard into two houses. This redevelopment relied upon the existing right of way because the driveway was the only way to access the development on the agricultural yard from the main road.

Bucknell applied to the court for an injunction to prevent Alchemy Estates from developing the yard. She argued that the court should grant the injunction because:

1. The person who originally granted the right of way did not intend for the right of way to be used by construction vehicles and additional homeowners because it would significantly restrict the use of their land, i.e. when the right was created it was only to access an agricultural yard, not two newly built houses.
2. If additional homeowners and construction vehicles were to use the driveway, it would be extremely disruptive for Bucknell (and lead to Bucknell being able to sue the developer for "nuisance").

The court granted Bucknell an interim injunction at first, however this has now been overturned.

The Judgment

The judge ruled in favour of Alchemy Estates, and the claim failed. The judge responded to Bucknell's arguments as follows:

1. New use of the right of way – the judge concluded a right of way could include uses which had not been originally contemplated by the parties when the right of way was granted, if the land in question could physically accommodate any new use (which it could in this case). Following evidence from numerous experts, the judge found that the right of way was binding on Bucknell and would extend to the developer's use of it to serve the two new houses.
2. Disruption – the judge opined that provided that the construction works were reasonable, the construction of the houses could not amount to nuisance because 'demolition and construction are facts of everyday life and there must be a give and take.' Similarly, the judge stated that the use of the driveway by the occupiers of the two new houses could not amount to a nuisance because it would not prevent Bucknell from also using the driveway.

What lessons can we learn from this Case?

Any aspiring property owner should always watch out for any rights of way over the land they want to buy and be aware that the right of way may allow more than what the wording might suggest at face value.

If you intend to purchase property which is affected by a right of way, you must ask yourself the right questions, such as:

1. Is the wording of the right of way wide or narrow enough to support my intended use?
2. What uses of the right of way might be excessive?
3. What does or might the right of way allow?
4. Are there any costs associated with using the right of way?

We at mfg would be able to advise you on these questions and more. If you intend to purchase commercial property and would like assistance, please call 0121 2367388 and ask for Beth Margetson, Phil Hunt, or Jack Cook.