Problems with rights of way

Problems with rights of way

Bramwell v Robinson [2016] EWHC B26 (Ch)

Disputes over rights of way between the owner of the land and those entitled to the right of way are not unusual. A recent case illustrates many of the kind of issues that can arise and the dispassionate way the law will resolve them.

The Facts

Mr and Mrs Bramwell own a farm in County Durham. The only access is by means of a prescriptive right of way which for some 625 metres is in the ownership of Mr Robinson. Various issues arose over the use of the right of way, including:

  • Mr Robinson had erected 3 sets of gates, which he insisted were to be kept closed;
  • He had also constructed 13 sets of speed bumps, which it was claimed by the Bramwells were ‘aggressive’ in that they were so high cars could not drive over them without hitting their underside.
  • As the track was not wide enough for vehicles to pass, 3 ‘passing places’ had been created by users driving over the grass verge of the track; could use of these be prevented by the landowner?
  • Mr Robinson had also erected 50 wooden posts in the verge to stop it being used;
  • A pothole had developed which Mr Bramwell had filled; Mr Robinson subsequently removed the filling. Was he entitled to do so?

The Decision

The law on all of these areas is quite clear. To establish an easement there must be 20 years use ‘as of right’. This means it must be neither by violence, nor by stealth nor by leave asked from the landowner. As far as interference with the right is concerned, not every interference with a right of way is actionable. The owner of the right may only object to activities, including obstructions, which substantially interfere with the exercise of the right as for the time being is reasonably required by him. Looking at the individual issues:

  • The Gates: the erection of a gate is not necessarily a substantial interference; it depends upon why the gate was erected. Was it erected by the landowner for convenience or out of ‘cussedness’? In this case Mr Robinson’s insistence on closing the gates was “cussedness” rather than convenience. The gates were to be kept open.
  • The Speed bumps; again these are not necessarily an interference. But these because of their number and construction were. Five bumps were to be allowed but constructed so as not to scrape the bottoms of ordinary cars.
  • Passing Places: The judge found that the right of way prescribed for did not extend to the use of the 3 passing places; only one had been used as of right for 20 years, so use of it could continue, but use of the other two was not allowed.
  • The wooden posts; the use of the grass verge had not been prescribed for and was not part of the right of way so these did not amount to an obstruction (with the exception of 2 posts which prevented use of the passing place mentioned above).
  • The pothole: It is established law that the owner of a right of way also has a right to repair it. An order was made preventing Mr Robinson from interfering with the right to maintain and repair the track. 

Conclusion

HH Judge Behrens commenced his judgement by stating that “as with many such disputes it would have been far better if it could have been resolved amicably or with the assistance of an experienced mediator.” He went on “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 that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose.” And if the matter goes to court, the judge will have to apply the strict rules of the law of easements which may give results which do not satisfy either side. That was probably the case here. But nonetheless a timely reminder to all conveyancers who may be asked to advise on such disputes.

Paul Butt

Paul Butt is a retired consultant at Rowlinsons Solicitors.

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