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Lea v Ward [2017] EWHC 2231 (Ch)

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12th October 2017

The High Court held that the most natural reading of a deed granting a right of way “over the track or way” was to limit the right of way to the track that was actually in use at the time of the grant in 1979. The claim concerned the existence, location and in particular, the width of a right of way. The Claimant sought injunctions and damages for interference.

By a deed of gift in 1979 a father gifted land to the Claimant’s brother, reserving certain rights of way and of access and specifically, a right of way over a particular “track or way”, was reserved to the Claimant. The Claimant’s brother subsequently sold the land to the Defendant. The Defendant obtained planning permission for a residential development and began work, leading to a dispute concerning the right of way and whether the Defendant had interfered with the Claimant’s use of it.

The Judge was presented with a vast amount of evidence. Of particular assistance was the information the Judge obtained first-hand from the site view; historic photographs of the land; and video footage of vehicular use, which ultimately went to the question of interference.

The Judge applied the normal principles for interpretation of contractual documents, referring to the most recent exposition of those by the Supreme Court in Wood v Capita Insurance Services Ltd [2017] 2 WLR 1095, paragraphs [10]-[15].

In concluding that the extent of the right of way would be limited to that which was in use at the time of the grant, the Judge observed that what was actually in use would be evidenced by what was physically discernible on the ground at the time and would not include the verges (Oliver v Symons [2012] EWCA Civ 267, [2012] 2 P&CR 2 considered). A landowner was entitled to build right up to the boundary of his land.

The physical structures that had been erected by the Defendant did amount to a substantial interference, however, the impact was considered to me minimal and therefore only a small sum of damages was appropriate in the circumstances. An injunction would be granted if the Defendant was not able to make some adjustments to allow the Claimant an alternative but equally convenient route.

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