Zieleniewski v Scheyd & Anor

An obstruction of a right of way is actionable if it substantially interferes with a particular mode of exercise which the dominant owner reasonably wishes to use. The inquiry is one of convenience, rather than necessity. The availability of another reasonable method of access does not answer a complaint about the loss of a reasonable and non-perverse mode of use.

A prescriptive agricultural vehicular right of way is defined by its agricultural purpose, not by the precise vehicles used during its acquisition. It may therefore be exercised by older or newer machinery, provided that the proposed use remains reasonable.

The appellant owned a cottage and a field. The field had a prescriptive agricultural right of way over neighbouring land. The respondents erected a wall and fence which confined access to a narrow curved strip leading to the field gateway.

Following a trial in Taunton County Court, the Recorder held that the agricultural easement existed but that the works did not substantially interfere with it. The appellant appealed only that conclusion. By then the respondents had sold the servient land, so the appellant sought a declaration rather than an injunction.

The central issue was whether preventing, or making seriously difficult, access by a conventional baler producing small square bales was an actionable substantial interference, despite access remaining possible for a tractor towing a round baler.

Decision

Briggs J, with whom Moses and Rix LJJ agreed, allowed the appeal.

1. The applicable principle was that an owner of a right of way may object only to conduct which substantially interferes with exercise of the defined right as reasonably required. The inquiry is directed to convenience, not necessity. If a particular mode of use is reasonable and not perverse, an obstruction is actionable even though other reasonable modes of exercise remain available. The court applied the principles stated in B & Q Plc v Liverpool & Lancashire Properties Ltd (2001) 81 P&CR 20.

2. The prescriptive easement was properly defined by its agricultural purpose, rather than by the vehicle types used during acquisition. A right acquired through use by older machinery did not cease to permit a reasonable use of such machinery merely because newer machinery had become more common. That conclusion was supported by Lock v Abercester Ltd [1939] 1 Ch 861.

3. The Recorder had not adequately addressed the unchallenged oral evidence concerning conventional balers. That evidence showed that their offset configuration made passage along the curved strip impossible, or at least seriously inconvenient, and that small square bales were reasonably required by the field's licensee. Evidence that a round baler could pass through the strip did not answer that distinct complaint. Nor did the absence of photographic, video or expert evidence justify rejecting detailed practical evidence from experienced witnesses.

4. The wall and fence therefore substantially interfered with a reasonable particular use of the agricultural right of way. The court granted the requested declaration in place of the no longer attainable injunction.

• Court of Appeal (Civil Division) — By [2012] EWCA Civ 247 , allowed the appeal and granted a declaration that the wall and fence substantially interfered with the agricultural right of way.
• Taunton County Court — On 3 May 2011, Recorder Browne-Wilkinson QC held that the appellant had acquired a prescriptive agricultural right of way, but dismissed the claim for injunction and damages on the basis that the works did not substantially interfere with it.