Maioriello & Ors v Ashdale Land and Property Company Ltd

A servient owner may restrain excessive use of an easement, and in rare cases may obstruct the whole easement where lawful and unlawful use cannot be separated. That power does not ordinarily justify preventing one dominant owner from exercising a lawful easement merely because other dominant owners persistently use the way unlawfully. The court must distinguish between the users and consider the practical effectiveness and proportionality of the relief. In exceptional circumstances, a temporary or conditional obstruction may be justified where unlawful use is persistent, lesser measures are ineffective, and the affected dominant owner has no genuine present need for lawful use. Any obstruction must be limited to what is necessary and must allow lawful use when genuinely required, subject to liberty to apply.

Ashdale owned an access road serving land that had been subdivided into plots. The original grant created an agricultural right of way, while some later rights over retained land were exercisable for all purposes. Several plot owners and occupiers used the road unlawfully to operate a traveller caravan site, in breach of planning controls and repeated injunctions.

Mr Cash acquired one plot with the benefit of the agricultural easement. The trial judge declared that Ashdale could obstruct all access and restrained Mr Cash and other defendants from using the road, subject to limited access to remove possessions. Mr Cash appealed against the declaration and injunction as they affected him. The central issue was whether his lawful use could be restricted to prevent other dominant owners’ continuing unlawful use.

1. Appeal allowed in part. The declaration and injunction were too extensive as against Mr Cash. His agricultural easement was a legal property right, and the order amounted to its complete negation.
2. The general rule is that excessive use of an easement is restrained by injunction. The servient owner may also take practical steps against unlawful use. Complete obstruction is justified only in exceptional cases where lawful and unlawful use are indivisible, as where the manner of use makes separation impossible. The easement itself is not thereby extinguished or suspended.
3. The other defendants’ persistent and contumelious misuse of the road, and the practical difficulty of enforcing orders against them, justified unusually stringent relief against them. That did not justify an unlimited obstruction of Mr Cash’s independent right merely because the rights derived from the same original grant. Each subdivided plot carried its own easement, including under section 62 of the Law of Property Act 1925.
4. Mr Cash’s position differed materially. His unlawful use was brief, he had not breached the injunction after being joined, and there was no finding that he would resume unlawful use. Nevertheless, the exceptional circumstances permitted a conditional restriction. The court could obstruct vehicular access until he, or a person deriving title or occupation through him, genuinely required agricultural access. Pedestrian access could similarly be restricted until the unlawful occupation ended, lawful use was genuinely required, or further order.
5. The injunction against Mr Cash was set aside and replaced by an injunction restraining use of the road except in accordance with the original agricultural grant. The declaration was confined as stated above, and a general liberty to apply was added. His late oral application to amend by counterclaim was refused.

• Court of Appeal (Civil Division): [2011] EWCA Civ 1618. The appeal was allowed in part. The declaration and injunction were varied as against Mr Cash, while the existing position concerning the second to eleventh defendants was left undisturbed.
• Chancery Division: Mr Justice Field’s order dated 20 December 2010 authorised obstruction of all access and restrained the defendants from using the access road, subject to limited access to remove possessions.