Wall v Collins & Jennifer Collins

A private right of way is actionable only where an obstruction causes a real and substantial interference, assessed objectively by the court. The relevant question is whether the way can practically and substantially be used as conveniently as before. The dominant owner must exercise the right reasonably and with due regard to the servient owner’s enjoyment of the land. An established property right does not automatically justify an injunction. Equitable relief remains discretionary and may be refused where there is no present or threatened interference, or where an injunction would be unduly oppressive. The court may instead grant declarations defining the right and the circumstances capable of constituting actionable interference.

The claimant owned 231 Leigh Road and the defendants owned the adjoining property at 233 Leigh Road. Earlier litigation established the claimant’s express right of way over a passageway forming part of the defendants’ land. The Court of Appeal’s decision was reported at [2007] EWCA Civ 444, [2007] Ch 390, with a supplementary judgment at [2007] EWCA Civ 724.

In this second action, the claimant sought injunctions, declarations and damages for alleged obstruction of the right of way. By trial, the gates had been removed and the alleged parking had ceased. The central issues were whether any actionable interference remained, whether future obstruction was threatened, and whether equitable relief should be granted.

1. An action for disturbance of a private right of way requires a real and substantial interference, having regard to the express grant. The question is whether the right can practically and substantially be exercised as conveniently as before. The assessment is objective. The narrower the way, the more readily an obstruction may be actionable.

2. The claimant was entitled to choose the south passageway even where another route was equally or more convenient. Whether use was convenient or reasonable was an objective question for the court. The Court of Appeal’s observations concerning alternative access were read consistently with Young v Brooks [2008] EWCA Civ 816.

3. Having regard to the passageway’s width and physical layout, parking or stationing a vehicle on the passageway, or substantially on the adjoining rear road, could constitute an unreasonable and substantial interference, subject to reasonable exceptions for loading, unloading and passengers. A gate at either end would constitute such interference. A gate elsewhere would do so unless it could be operated without the driver leaving the vehicle and without obstructing traffic.

4. In an exceptional case, conduct on adjacent land may interfere with a right of access. The court applied the approach in Waterman v Boyle [2009] EWCA Civ 115, because the original grant contemplated access to a back street of defined width.

5. The principle of civiliter required the dominant owner to exercise the easement reasonably and without undue interference with the servient owner’s enjoyment. The law expected reasonable give and take between neighbours, as reflected in Moncrieff v Johnson [2007] UKHL 42, [2007] 1 WLR 2620.

6. The defendants had removed the gates, ceased the relevant parking and accepted the claimant’s right of way. There was no present obstruction and no intention or threat of future obstruction. Injunctive relief or undertakings were therefore unwarranted and, in any event, would be unduly oppressive in the circumstances. The claims for injunctions and damages were dismissed.

7. Declarations were granted to define the circumstances in which vehicles or gates might interfere with the right of way. The court rejected the remaining declarations and orders, including any claim requiring the servient owners to repair the way or contribute to repair costs.

The court also observed that an exceptional visibility-splay case, Carter v Cole [2009] EWCA Civ 410, did not alter the general rule that a right of way does not ordinarily carry an implied right to have visibility splays provided or kept clear.

This was a first-instance trial. The judgment records earlier litigation between the same parties in which the Court of Appeal established the claimant’s property interest in the nature of a right of way: [2007] EWCA Civ 444, reported at [2007] Ch 390, followed by a supplementary judgment on relief and costs at [2007] EWCA Civ 724.