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Moving rights of way

The case of Shaw –v – Grouby & Another [2017] EWCA CIV233

Among other issues this case considered what was “necessary” for access under a right of way. The article explores this issue.

Background

The (‘property’) is one of three houses which had been built in the grounds of a Manor House. Between the Manor House and the public highway, there is a driveway which form part of the Manor House title. The property benefitted from a right of way under the original register which read as follows:-

“to pass and repass at all times for all purposes over and along so much of the private driveway edged green on the said plan as is necessary to obtain access to the property subject to the provider that the buyers shall contribute a fair and reasonable proportion of the costs maintaining the same in a good and sufficient state of repair according to the extent of the user of the driveway by the buyers”.

The plan attached to the deeds identified the whole of the driveway edged green.

Part of the boundary of the property followed the route of the driveway. A wooden fence ran along the relevant part of the boundary.  The gap within it provided access for the owners of the property from the driveway.  Subsequently the owners of the property removed the fence and built a wall along the boundary providing for access in another place which was further from the public highway and consequently closer to the Manor House.

The owners of the Manor House took exception to the movement of the place of entry. They claimed the right of way in the Transfer limited the access point to the original gap in the boundary. The owners of the property argued there is a right of way along every part of the property that abutted the driveway and they were entitled to use the new access.

The Judge found in favour of the property owners, that the right of way was granted against every part of the property that abutted the driveway.  Manor House appealed.

The Court found the following:-

The question of whether a right of way gives access to every part of the benefitting property is one of construction or the relevant transfer. The court referred to the case of Petty –v- Parsons [1914] 2CH653. The plan attached to the Transfer showed the whole of the driveway edged in green.  The purpose of the green edging is to identify the next maximum extent over which the right of way could be exercised.  It was not as argued by the owners of the Manor House coloured to facilitate identification of the driveway on the plan. 

What is regarded as “necessary” is not to be construed by reference to a fixed point in time, that is to say the date of the original grant. The interpretation of what is “necessary” can vary from time to time during the time of the subsistence of the grant.  Such an interpretation will commit the use of different points of access from the driveway to the property.

There is no justification for interpreting “necessary” as requiring the shortest route from the property to the public highway as claimed by the owners of the Manor House.  The Court considered the owners of the Manor House were sufficiently protected by the fact the owners of the property had a requirement to contribute to the costs of maintaining the right of way.

If the intention of the parties had been to limit the right of way to a particular and fixed point of access, the Transfer would have expressly stated this within the grant.

Points to Consider

It is clear from the case that the parties must be careful about assuming because a particular point of access has been used that it forms the only position by which the dominant party can have access in the future. The interpretation of what is “necessary” can vary over time during the time of the grant.  This interpretation permits the use of different points of access from the driveway of the property.  This case should be borne in mind by anyone seeking to grant a right of way. In particular, as is noted by the Court, if it is the intention of the grant to limit the right of way to a fixed point of access, this needs to be expressly stated in the grant.

If you would like any advice please contact David Richards in our Dispute Resolution Team.