There recently has been a case in which a Judge has given some very interesting guidance on a right of way dispute between neighbours. If your neighbour is restricting your right of way or even obstructing access completely, we would be happy to advise you upon the extent of your rights and what options you have in enforcing these.
What was the dispute about?
Zoe Bucknell purchased a property called Holywell Farmhouse in Kent for £1.3 million in 2014.
Alchemy Estates (Holywell) Ltd is a company set up by her neighbouring farmer Mark Stoneham to develop property on Mr Stoneham’s land (the ‘Yard’). The land in question does not have access to the public highway and the only access is along the right of way passing over Mrs Bucknell’s land. This right of way is a driveway, which is approximately 55m, with no passing places. Other neighbours (Kalamunda and Plum Cottage) also have a right of way over her driveway which they use to access their properties.
Mrs Bucknell objected to Mr Stoneham’s planning permission application in April 2020 to develop two houses. This was because she believed that 'noise disturbance, vibration [and] fumes' from the traffic caused would affect the peaceful enjoyment of her property and the fabric of the driveway and of her home itself. She asserted that the works may damage the foundations of her Grade-II listed home.
The planning permission was approved and Mrs Bucknell later successfully obtained an interim injunction to prevent the construction work being carried out in February 2021. This resulted in Alchemy Estates (Holywell) Ltd having to use an alternative way in over another piece of neighbouring land for the transportation of construction material etc. over another piece of land, at a further cost, to continue with the works on the properties.
Mrs Bucknell issued a claim against Alchemy Estates (Holywell) Ltd in 2021 seeking declaratory and injunctive relief due to the increased use of the right of way.
What happened at the trial?
During the High Court trial, the Judge considered a number of factors including the historic use of the driveway. Mr Stoneham’s father Colin Stoneham used the Yard back in 1972. There was no mains drainage up until 1990, which mean council vehicles visited regularly to collect waste and sewage from septic tanks. In addition to this, the driveway was used by tankers delivering heating oil and lorries used it to collect refuse. Mr Mark Stoneham’s witnesses alleged that the driveway was used daily for agricultural use. Whereas Mrs Bucknell’s witnesses alleged that the use was much more limited. Although, the Judge did draw attention to the fact that the majority of Mrs Bucknell’s witnesses did not actually live on the driveway and took this into account. On balance, he believed that the driveway was used on a daily basis back in 1972.
The Stonehams later ceased farming in 1990 and, after which, their use of the driveway to access the yard was limited.
Mrs Bucknell purchased Holywell Farmhouse in 2014. Whilst she alleged that she was not aware of the right of way upon purchase, the judge explained that he would have expected her conveyancing solicitors to make her aware of this at the time. At the time of the purchase, the driveway would have been used for access by the Farmhouse and neighbouring properties to pass to and from their properties and also for collections and deliveries.
Since the purchase, Mrs Bucknell built wooden stables at the property and an extension to the farmhouse was also built. The necessary digger and materials would, therefore, have been brought down the driveway, meaning that Mrs Bucknell herself had used the driveway for construction purposes.
Mrs Bucknell had asserted that the increased traffic due to construction of the houses amounted to a nuisance. He explained that demolition and construction are facts of everyday life, and there must be "give and take" in relation to them. He accepted that the construction work resulted in vehicles carrying greater loads and greater noise than ordinary domestic traffic, but that works lasted for a limited time. Providing that this was limited, the construction should not have unduly interfered with Mrs Bucknell’s enjoyment of her land.
Two properties have been built on Mr Stoneham’s land, one of which is now occupied. The traffic management experts concluded that the traffic resulting from the two houses, now built, would not cause a serious loss of amenity. The Judge agreed despite Mrs Bucknell’s assertions that it would be inconvenient if two vehicles met each other on the driveway due to the fact that there were no passing places.
The Judge explained that the use of the occupiers of the two houses would not in his judgment interfere unreasonably with the other driveway users, nor would it affect the enjoyment by Mrs Bucknell of her land. In these circumstances, he did not consider that this use would amount to excessive use or amount to nuisance. Mrs Bucknell was not automatically entitled to the maintenance of the same rural peace and quiet that she enjoyed when she bought her property in 2014.
The Judge ultimately dismissed Mrs Bucknell’s claim.
If you wish us to advise upon any of the above issues, our team would be happy to help. Please do not hesitate to contact us at privateclientlitigation@brethertons.co.uk or on 01295 661587.