McGill v Stewart & Anor (land - rights of way - neighbours - private motor vehicles)

An express right of way must be construed objectively, having regard to the grant, the transaction’s purpose, the physical characteristics of the way, and the need to avoid derogation from the grant. A right permitting access by “private motor vehicles” to a dwelling ordinarily includes reasonable and lawful access necessary for ordinary residential use and maintenance, including deliveries, visitors, tradespeople, emergency access and septic-tank servicing. It does not ordinarily extend to substantial construction, demolition or improvement works which are not necessary to maintain the dwelling as a dwelling. The physical capacity of the way may impose additional limits. Here, access was limited to vehicles no wider than 2.6 metres and no heavier than 10 tons.

The claimant owned Juniper and the defendants owned Walnut Cottage, neighbouring properties served by a narrow private lane. A 1993 deed granted the defendants’ predecessor a right of way “on foot and with or without private motor vehicles” over the lane. The deed also required the property to be used as a private dwelling and prohibited trade, business or professional use.

The claimant sought declarations, an injunction and damages, contending that “private motor vehicles” meant vehicles privately owned by the defendants and used only for domestic purposes, or alternatively excluded commercial vehicles and construction vehicles. The defendants advanced a wider construction permitting vehicles connected with domestic use, including substantial construction traffic. The court determined the construction of the right of way, but left payment and repair issues for further evidence and argument.

1. Construction of the grant. The phrase “private motor vehicles” was construed objectively in its documentary, factual and commercial context. Relevant considerations included the language of the deed, the purpose of granting access to land required to remain a private dwelling, the physical nature and capacity of the lane, and the principle against derogation from grant. The approach was consistent with Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101, Arnold v Britton [2015] AC 1619 and Pennock v Hodgson [2010] EWCA Civ 873.
2. The claimant’s narrow construction, based on ownership by the defendants, was rejected as inconsistent with ordinary residential use. The right included reasonable and otherwise lawful access for postal and supermarket deliveries, visitors, doctors, tradespeople, emergency medical access and routine emptying of a lawful septic tank, subject to the lane’s physical capacity. A tradesperson’s visit to maintain the dwelling was not use of the property for a trade or business.
3. The defendants’ broader construction also went too far. The right did not positively permit substantial demolition, construction or improvement works, such as annexes, libraries or swimming pools, merely because they were connected with the dwelling. Permission should be sought for such exceptional use.
4. The lane’s minimum width was 2.6 metres. Vehicles wider than that would trespass beyond the lane. Following the practical approach in White v Richards (1993) 68 P & CR 105, the court adopted a maximum laden weight of 10 tons.
5. The operative declaration was that the right permitted reasonable and lawful vehicular access for use and maintenance of the dwelling as a private dwelling, excluding parking or obstruction on the lane and subject to the 2.6-metre width and 10-ton weight limits. Payment and repair issues remained undecided. Mediation or ADR was strongly recommended.