Heslop v Bishton & Ors

An alternative route, including a route available through an equitable right of deviation, does not extinguish an existing legal right of way or prevent obstruction of the original route from being actionable. The availability and convenience of the alternative route are relevant to the remedy, particularly whether an injunction should be granted. They may justify declaratory relief or compensation instead. A servient owner cannot unilaterally alter the route of an easement unless authorised by the grant, by implication, or by a subsequent grant. The creation of a new route and the extinguishment of the old route are distinct matters. The former may be granted unilaterally, but the latter cannot be achieved by merely providing an alternative route.

The appellant appealed against a District Judge’s order granting summary judgment for the respondents on their counterclaim. The District Judge declared that the appellant’s wall and pillar substantially interfered with the respondents’ right of way and that, while the obstruction remained, they could pass over adjoining land to use the gateway effectively.

The appellant accepted that the wall obstructed the right of way as defined by a 1985 deed. He argued that the respondents’ equitable right to deviate around the obstruction meant that the original right of way was not substantially obstructed, or that the court should not grant declaratory relief. The central issue was whether an alternative or substituted route affected the existence of the original easement, rather than only the remedy for its obstruction.

1. Appeal dismissed. The District Judge was right to declare both the substantial interference with the right of way and the respondents’ entitlement to pass over adjoining land to make effective use of the gateway.
2. The authorities concerning gates across rights of way did not assist the appellant. They depended on the original route remaining usable with equal convenience. The undisputed findings showed that the gateway could not be effectively used through the width of the original right of way.
3. A servient owner cannot unilaterally alter the route of an easement unless that power is an express or implied term of the grant or is subsequently conferred. Rerouting involves two separate processes: granting a right over a new route and extinguishing the right over the former route. A servient owner may grant the additional route by deed, but cannot thereby compel the dominant owner to abandon the established route.
4. The reasoning in Crane Road Properties LLP v Hundalani [2006] EWHC 2066 (Ch) went no further than recognising that, where an interference caused no practical loss, the court might decline an injunction or damages. It did not establish that the original easement had not been infringed.
5. The equitable right of deviation recognised in Selby v Nettlefold (1873) LR 9 Ch App 111 could not extinguish the respondents’ legal right over the original route. An alternative route could affect the discretionary remedy, but the court could still grant a declaration confirming the right’s subsistence or award compensation. The respondents’ position was especially insecure because the appellant offered only a time-limited licence over the additional land.
6. The declarations were therefore appropriate, and the appeal was dismissed.

• District Judge: On 2 July 2008, District Judge Dowling granted summary judgment for the respondents on their counterclaim and made declarations concerning substantial interference with the right of way and the respondents’ right to pass over adjoining land.
• High Court (Chancery Division): The appeal was dismissed. The District Judge’s declarations were upheld.