Zoe Claire Bucknell v Alchemy Estates (Holywell Limited)

An express right of way granted at all times and for all purposes is not confined to the uses reasonably required when it was created. It may support later residential use and reasonably necessary demolition and construction, provided the servient land can physically accommodate the use.

The right remains subject to the rule against excessive user. The relevant question is whether the use unreasonably interferes with others entitled to use the way. That is a fact-sensitive and evaluative inquiry. Construction traffic and residential traffic will not be excessive merely because they increase use, particularly where the increase is limited, the way can physically bear it, and the interference is modest. The same conduct may also be considered separately under the law of nuisance.

The claimant owned and occupied Holywell Farmhouse. The defendant owned adjoining land, known as the Yard, which had no direct access to the public highway. A 1972 conveyance and transfer contained rights of way over a driveway serving the properties.

The defendant built two houses on the Yard. The claimant sought declarations and injunctions, alleging that construction traffic and subsequent residential use exceeded the scope of the right of way and constituted nuisance. An interim injunction restricted construction traffic during the proceedings. The central issues were whether the right bound the claimant, its physical extent, whether it permitted construction and habitation, and whether the resulting use was excessive or actionable in nuisance.

1. The claim was dismissed. The right of way in the 1972 Yard transfer bound the claimant. It was protected under the transitional provisions of the Land Registration Act 2002, Schedule 12 paragraph 9, read with Schedule 3 paragraph 3. The claimant knew of the right, and it was obvious on reasonably careful inspection. The right in the Farmhouse conveyance was also protected by the notice appearing in the Property Register.
2. The words granting a right of way over the roadway coloured brown extended across the whole width shown on the plan, between the Farmhouse wall and the Plum Cottage boundary. The right was limited by what the physical land could accommodate, but the evidence established that the driveway could bear the relevant vehicles and loads.
3. The words at all times and for all purposes, coupled with the references to animals and vehicles and the contemporaneous residential right benefiting Kalamunda, permitted residential use. The right also permitted reasonably necessary demolition and reconstruction. A right of way is not confined to the purposes reasonably required at the date of grant.
4. Excessive user is distinct from the construction of the right. It occurs where use unreasonably interferes with others having similar rights. The question is fact-sensitive and evaluative. Construction traffic would have involved 126 movements over 314 working days, would not have damaged the driveway, and would not have caused unreasonable interference. It therefore would not have been excessive.
5. Residential use of the two houses would add only a small amount to existing traffic. Expert evidence showed no serious loss of amenity and no material risk of damage. That use would not unreasonably interfere with other users or the claimant’s enjoyment of her land, and would not constitute excessive user.
6. Excessive user and nuisance are separate questions. The construction and residential traffic would not have constituted actionable nuisance. No additional judicial limits on vehicle weight, width or speed were required; the express grant and ordinary negligence law supplied sufficient control.

The judgment was a first-instance decision following a trial. An interim injunction had previously been granted and continued during the proceedings, including in [2021] EWHC 1544 (Ch).