Vance & Anor v Collerton & Anor

The scope of an express right of way is determined by construction against the physical circumstances existing when it was granted. Wide words permitting vehicles and all purposes do not necessarily authorise removal of durable boundary features which were plainly intended to remain. The court considers the practical and intended use of the land, the nature of existing obstacles, and the rights separately conferred by the instrument.

Actionable interference is assessed by asking whether the grantee’s insistence on continuing the contracted use is reasonable, and whether the right can be exercised substantially and practically as conveniently as before. A reasonable preferred method of exercising the right cannot be defeated merely because others could use a different method.

The Vances, owners of Queen Anne’s Cottage, appealed against decisions of His Honour Judge Parfitt concerning the boundary between the Cottage and Queen Anne’s House, ownership of boundary features, and the scope and alleged obstruction of a right of way reserved by a 1991 transfer. The Collertons, owners of the House, brought a cross-appeal concerning the same boundary and ownership findings.

The dispute arose after the Vances removed a white fence and hedge to create parking access to the Cottage garden. The County Court held that the features were jointly owned, that the right of way did not permit their removal or parking in the Cottage garden, and that the Collertons could park provided they did not unreasonably obstruct the right of way. The central issues were the proper construction of the transfer and whether parking in the driveway interfered unlawfully with the right.

1. Appeal and cross-appeal dismissed. The County Court’s order was upheld in its entirety.
2. The location and ownership of boundary features were closely linked. Construction of the transfer required consideration of the physical condition of the land at the date of conveyance, with the plan in hand, and the surrounding objective circumstances. Because the transfer was ambiguous and imprecise, limited evidence of subsequent conduct by the original parties could properly be considered where probative. The white fence was a more natural boundary than the hedge behind it. Joint ownership of a boundary fence was unusual but not legally impossible, and the finding was open on the evidence.
3. The scope of the right of way was a question of construction. No separate principle governed so-called mode-of-access cases and obstruction cases, and the same approach applied to express and implied rights. The words permitting vehicles of any description and use for all purposes had to be given effect, but could not be read literally. They did not authorise vehicles wider than the physical entrance or removal of the white fence and F-G hedge.
4. The existing obstacles were durable features of the former undivided title. Objectively, they were intended to remain in place when the title was divided. The separate right to park on the driveway for loading and unloading was an additional right and did not determine the scope of the broader right to pass and repass. The absence of any obligation on the original purchasers to maintain the driveway was also relevant to construction.
5. Applying [2001] 1 EGLR 92, the Vances’ preferred method of reversing into the driveway was not unreasonable or perverse. The Collertons’ car in the bell mouth made that manoeuvre impracticable. The judge was entitled to reach that factual conclusion, and the later video evidence did not justify appellate interference.
6. The judge’s exercise of discretion as to relief disclosed no error. His declarations, reinstatement order and other monetary and costs orders therefore remained undisturbed.

• High Court (Chancery Division): appeal and cross-appeal from the County Court dismissed; the decision of His Honour Judge Parfitt was upheld in its entirety.
• County Court at Central London: in a reserved judgment handed down on 19 October 2018, the claim was dismissed in substance, the counterclaim was partially allowed, and declarations and monetary orders were made concerning the boundary, boundary features, reinstatement and the right of way.