Lea v Ward

A right of way granted over a “track or way” is ordinarily confined to the physically discernible track existing when the grant was made. It does not include adjoining verges or swing space unless the grant, properly construed against its background, requires that result and there is cogent evidence that the narrower construction would defeat the parties’ objective.

Interference is actionable where the way cannot be substantially and practically exercised as conveniently as before. An alternative route may affect the remedy, but does not extinguish the original right. Mandatory injunctive relief remains discretionary and depends principally on the convenience of the alternative route and the likely consequences of refusing relief.

The claimant sought declarations and relief concerning the existence, location and width of a right of way reserved by a 1979 deed over land at Dodecote Grange. He alleged that fencing, walls, a gate and associated works substantially interfered with the right of way and constituted nuisance.

The central issues were the location of point D, whether the grant extended across the whole strip or only the discernible track, whether the alleged obstructions were actionable, and whether damages, mandatory or restraining injunctions, or other declaratory relief should follow.

1. Construction of the grant. The expression “track or way” in the 1979 deed naturally referred to the physically discernible track in use in 1979. The track excluded the adjoining verges and was no more than 3.75 metres wide. The right of way ran approximately 1.25 metres from the retaining wall on the eastern side of the strip and extended 3.75 metres towards its western side. The wording of the maintenance reservation in sub-paragraph (d) was a forceful contrary consideration, but could not justify departing from the natural meaning of “track or way”: [2017] EWHC 2231 (Ch) at [84], [87]-[118].
2. The right of way did not include use with animals. The wording of the reserved right differed from the grant to the donee, which expressly referred to vehicles and animals: [2017] EWHC 2231 (Ch) at [108].
3. Substantial interference. Applying B&Q Plc v Liverpool & Lancashire Properties, (2001) 81 P&CR 20, the question was whether the way could still be substantially and practically exercised as conveniently as before. The Heras fencing completely obstructed the way and therefore constituted actionable nuisance, although only nominal damages of £5 were awarded because the practical effect was limited: [120]-[125].
4. The walls, reverse wall and western gate post intruded into the right of way and left only 2.25 metres available. They substantially interfered with the claimant’s entitlement. The eastern retaining wall, eastern gate post and parking area did not: [129]-[134].
5. A servient owner could not alter the route merely by creating a wider alternative. Following Greenwich NHS Trust v London & Quadrant Housing, [1998] 1 WLR 1749, and Heslop v Bishton, [2009] EWHC 607 (Ch), an alternative route went to remedy and did not extinguish the original right: [128]-[129]. The route was equally convenient from Dodecote Drive but less convenient when approached from Bolas Road: [144]-[146].
6. A mandatory injunction was therefore ordered conditionally, requiring removal of the obstructing portions unless the defendant provided and formally granted a sufficiently convenient four-metre alternative route. No restraining order was granted because there was no real risk of future substantial interference. General damages of £500 were awarded for the remaining obstruction: [145]-[150].