Emmett v Sisson

An express right of way is construed from the language of the grant read in its factual setting. A grant to pass over and along an accessway may confer a linear right of vehicular and pedestrian access along the whole adjoining boundary where it contains no limitation to specified access points and its context supports unrestricted access.

Interference is actionable where it substantially impairs the reasonably required exercise of the granted right. The question is not whether a reduced facility would be reasonable or necessary. It is whether the grantee's reasonably chosen use of the full contractual right can still be exercised substantially and practically as conveniently as before. A wall leaving only one entrance may therefore be actionable even though it preserves some access.

The respondents owned River View Barn. Their 1996 conveyance granted a right of way over an accessway later owned by the appellants. The appellants proposed to build a two-metre brick wall along the boundary, while offering one vehicular entrance through it.

HHJ Pearce-Higgins QC in Hereford County Court declared that the easement extended over the full width of the accessway, was coterminous with River View Barn's boundary, and permitted access at any point along it. He held that the proposed wall would be an actionable interference.

On appeal, the appellants accepted the physical extent of the easement. The issues were whether the grant gave linear access along the entire boundary and whether a wall with a defined entrance would unlawfully interfere with that right.

1. Appeal dismissed. Aikens LJ, with whom Macur LJ and the President of the Queen's Bench Division agreed, upheld the declarations made below.

2. The nature and extent of an express right of way depend on the grant construed in its surrounding circumstances: West v Sharp [2000] 79 P & C Reports 327. The words granting passage “over and along the access way” conferred access along the whole boundary. The references to vehicles and to reasonable purposes limited the purposes of the grant, not its physical extent. The absence of a fencing obligation on that boundary and the absence of any other lawful access supported that construction.

3. Well Barn Shoot Ltd v Shackleton [2003] EWCA Civ 02 concerned the implication of an access into a field and did not assist in construing this express grant. Pettey v Parsons [1914] 2 Ch 653 was principally a fact-sensitive decision on whether a fence and gate interfered with a reserved right. It did not displace the ordinary construction of this grant.

4. Not every interference with an easement is actionable. The question is whether the right can still be substantially and practically exercised as conveniently as before. The inquiry concerns whether the grantee reasonably insists on use of the whole contractual right, rather than whether a reduced facility would meet a test of necessity: B&Q plc v Liverpool and Lancashire Properties Ltd (2001) 81 P&CR 20.

5. The judge had framed the reasonableness inquiry incorrectly by concentrating on the appellants' proposed conduct. His conclusion was nevertheless correct. The respondents' insistence on their full linear right was neither unreasonable nor perverse. A wall with only one entrance would severely restrict their vehicular and pedestrian access and would not permit exercise of the right with the former convenience. It would therefore be an actionable interference.

• Court of Appeal (Civil Division) — dismissed the appellants' appeal and upheld the declarations concerning the extent and exercise of the right of way.
• Hereford County Court — on 1 May 2013, HHJ Pearce-Higgins QC held that the easement was coterminous with River View Barn's boundary, permitted access at any point along it, and would be actionably interfered with by the proposed wall.