Ashdale Land and Property Company Ltd v Maioriello & Ors

The usual remedy for excessive use of an easement is an injunction restraining use beyond the grant. Complete obstruction may be authorised only in an exceptional case where lawful and excessive use cannot practically be separated, or where an injunction would be ineffective. The court must consider the interests of all affected persons and be satisfied that the relief is proportionate, just and appropriate. Repeated deliberate breaches of injunctions, the risk of continuing trespass, and the absence of a genuine intention to use land for the permitted purpose may justify complete obstruction.

Ashdale, owner of a private access road, sought damages, declarations and injunctions against landowners and occupiers who used the road for purposes outside an agricultural right of way. The use was connected with caravan sites and involved repeated trespass, including the movement of vehicles and construction materials. Earlier injunctions had been repeatedly ignored.

The issue was whether Ashdale could obstruct all access to the defendants’ land rather than merely restrain non-agricultural use. Mr Cash accepted an injunction limited to agricultural use but opposed complete obstruction on proportionality grounds.

1. The usual remedy for excessive user of a right of way is an injunction restraining use other than that permitted by the easement. Hamble Parish Council v Haggard and Another [1992] 1 W.L.R. 122 supported that approach.

2. Complete obstruction may be authorised where permitted and excessive use cannot effectively be separated. The principle in Cawkwell v Russell (1856) 26 L.J. Ex. 34 supported stopping the whole use where excessive exercise of a limited right produced a nuisance.

3. The court distinguished Bernard and Bernard v Jennings and Hilaire (1968) 13 W.I.R. 502. Complete obstruction is not automatic. Where an injunction would be ineffective, a declaration permitting obstruction may be granted if, having regard to all affected interests, the relief is proportionate, just and appropriate.

4. Those conditions were satisfied because of repeated breaches, the risk of continuing trespass and damage, and Mr Cash’s lack of genuine agricultural intention. A declaration authorising obstruction of all access was therefore made against the second to twelfth defendants, subject to liberty to apply and a reasonable opportunity for existing occupiers to leave.