Bucknell v Alchemy Estates (Holywell) Limited  EWHC 683 (Ch)
6th April 2023
By Nicholas Isaac KC and Robyn Cunningham
This case concerned a right of way expressly granted “at all times and for all purposes”, in a 1972 conveyance, when the dominant land was agricultural. The issue for the Court was whether the right of way could continue to be enjoyed for the redevelopment of the dominant land for the purpose of two residential dwellings. The claimant contended that such user was outside the scope of the grant and/or constituted excessive user.
The director of the Defendant is Mark Stoneham. The grantees of the 1972 conveyance, containing the right of way, were Colin and Ivor Stoneham, Mark’s father and uncle. The Stoneham family has had a proprietary interest in the dominant land since approximately 1943 and it was used as an extension of their farm until around 1990. The Claimant purchased the servient land in 2014.
The claimant brought an action for declaratory and injunctive relief restraining the alleged increased use of the right of way. An interim injunction was granted by Mann J on 1 February 2021 which was continued by Zacaroli J, until final order in the claim, with limited exceptions:  EWHC 1544 (Ch).
Following a 6-day trial, HHJ Paul Matthews found that the claimant was not entitled to the relief sought and dismissed the claim. The judgement gives important guidance on interpretation of the extent of express rights of way.
Extent of the express right of way
There are two aspects to the construction of express rights of way:
- The meaning of the words used in the document(s) (Lord Neuberger in Arnold v Britton  AC 1619 at  applied).
- The subjective evidence of any party’s intentions in pre-contract negotiations (Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd  1 AC 1101 at  applied).
The right of way “is limited to what the servient land can physically accommodate, because that is all that the parties can have reasonably contemplated at the time of grant” (Todrick v Western National Omnibus Company, Limited  Ch 561). An express right of way “should not be used for something for which it obviously could not be used”: Rosling v Pinnegar (1987) 54 P & CR 124, 595G-H ().
However, rights of way are not contractual rights, they are property rights which are “intended to be stable and long-lasting, and to apply to (and potentially affect) third parties. They therefore should be clearly recognisable to third parties and their advisers.” (). That is why “the Court of Appeal has many times said that a right of way under an express grant is not to be restricted to such uses as were reasonably required at the date of the grant” (White v Grand Hotel, Eastbourne, Limited  1 Ch 113, 116; Robinson v Bailey  2 All ER 791; British Railways Board v Glass  Ch 538, 558F; Jelbert v Davis  1 WLR 589; Holmes v Hughes, unreported, 15 July 1988.) ().
Excessive user of rights of way
The leading case on excessive user remains Jelbert v Davis  1 WLR 589.
- Lord Denning MR: “Is the proposed user so extensive as to be outside the reasonable contemplation of the parties at the time the grant was made?… and it would be a nuisance to them.” (p. 596B-C)
- Dankwerts LJ: “The test must be whether the interference is so substantial as to interfere with the rights of other persons in an unreasonable manner. It cannot be right that the others should be swamped by the traffic created by the plaintiff so as to amount to a legal nuisance.” (p. 597E)
HHJ Paul Matthews reviewed the authorities and derived the following principles ():
- a right of way must not be used excessively, that is, must not be used so as to interfere unreasonably with the use by other persons having a similar right;
- the question whether there is excessive user is fact-sensitive and evaluative;
- if the judge at trial applies the correct test in law, the appellate court will interfere with that decision only where it is one which no reasonable tribunal could have reached;
- accordingly, an evaluative decision by the court in one set of circumstances that there is or is not excessive user cannot govern any other set of circumstances.
Each party relied on the evidence of two experts: one engineering and one traffic management. There was also a site view. HHJ Paul Mathews note that “as the world becomes more sophisticated, so too does expert evidence. That adduced in the present case is many times more complex than will have been adduced (if any at all) in the earlier cases.” (). The expert evidence went to the durability of the driveway over which the right of way is exercised and the effect of increased vehicle movements on other users.
HHJ Paul Mathews made the following significant findings:
- At the date of the grant the defendant’s predecessors in title frequently used the right of way over the driveway for agricultural purposes.
- Construing the conveyance, the right of way extended across that whole width and length of the driveway including the unmetalled verges (Carpenter v Calico Quays Ltd  EWHC 96 (Ch), ; West v Sharp (2000) 79 P & CR 327, 333; White v Richards (1993) 68 P & CR 105, 107 applied).
- The expert engineering evidence showed that the driveway could accept the loads involved in the construction of the two dwellings ().
- User of the right of way for the purposes of construction and habitation of two dwellings would not be excessive, relying on the evidence of the traffic experts and lay witnesses.
- “The claimant is not automatically entitled to the maintenance of the same rural peace and quiet that she enjoyed when she bought in 2014: Rosling v Pinnegar (1987) 54 P & CR 124, 132” ().
A right of way expressly granted “at all times and for all purposes” is subject to two principle restrictions: the physical carrying capacity of the land and restrictions on excessive user. However, these restrictions are limited in scope. Any prospective purchasers should check their title documents carefully.
Nick Isaac KC and Robyn Cunningham (instructed by Veale Wasbrough Vizards LLP) represented the successful Defendant.
Team: Nicholas Isaac KC
, Robyn Cunningham
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