Young & Anor v Brooks & Anor

An express grant of a right of way must be construed from its language, read as a whole in its surrounding circumstances. Direct evidence of the grantor’s subjective intention, and opinion evidence on the grant’s legal meaning, is inadmissible.

Words granting access at all times for all proper purposes connected with reasonable enjoyment permit ordinary domestic use unless the grant itself imposes a relevant restriction. A court must not convert a broad right of access into a right exercisable only where another means of access is impracticable. Use which may be inconsiderate of a neighbour’s privacy is not thereby unlawful.

The appellants owned a terraced house with an express right of way over a footpath beside and behind the respondents’ adjoining house. The grant permitted access to and egress from the rear of the appellants’ property at all times for all proper purposes connected with its reasonable enjoyment.

The respondents alleged excessive use, including ordinary domestic use, visitors, dog walking and children using the path. The Preston County Court declared that the right could be exercised only where use of the front door was not reasonably practicable, and ordered the appellants to pay costs.

The appellants appealed. The central issue was whether the grant confined use of the rear footpath to circumstances in which access through the front door was impracticable.

1. Appeal allowed unanimously. Rimer LJ, with whom Sedley LJ and Ward LJ agreed, held that the declaration imposed a restriction for which the express grant gave no warrant. The declaration in paragraph 3 of the County Court order was set aside.

2. The nature and extent of an expressly granted right of way depend on the parties’ objective intention as expressed by the grant’s words, construed as a whole in their admissible surrounding circumstances. That approach followed White and Another v Richards (1994) 68 P & CR 105 and St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No. 2) [1975] 1 WLR 468.

3. The Council’s post-grant documents were inadmissible. Direct evidence of what a party actually intended is not admissible to construe an instrument, absent a rectification claim. Nor is opinion evidence admissible on the pure question of law raised by construction. The contractual interpretation principles in Investors Compensation Scheme Ltd. v West Bromwich Building Society [1998] 1 WLR 896 applied equally to an express easement.

4. The grant permitted use of the footpath at all times for ordinary domestic activities connected with reasonable enjoyment of the dominant house. Its description as a footpath implicitly excluded vehicular use, but it did not make rear access subordinate to front-door access. A restriction to circumstances where the front door was impracticable would have required clear language.

5. The ordinary uses alleged, including walking a dog, children riding bicycles and accessing a car, were neither improper nor unconnected with reasonable enjoyment. They could affect the respondents’ privacy and be inconsiderate, but were not unlawful. The judge had therefore rewritten rather than construed the grant; the finding of excessive use necessarily failed.

• Court of Appeal (Civil Division): The appeal was allowed and the restrictive declaration was set aside: [2008] EWCA Civ 816.
• Preston County Court: On 6 December 2007, Judge Morgan declared that the right of way could be exercised only where use of the front door was not reasonably practicable, and ordered the appellants to pay the respondents’ costs.