Maioriello v Ashdale Land and Property Company [2011] EWCA Civ 1618
Ashdale owned an access road over which it had granted a right of way for agricultural purposes to adjoining landowners, including Mr Cash. Some of the adjoining owners allowed travellers to park caravans on their land and Ashdale sought and obtained an injunction preventing the access road from being used by the travellers on the grounds that this was not agricultural use and therefore not permitted by the right of way. The injunction was ignored and, because of this, the court made a declaration entitling Ashdale to physically obstruct access to the right of way, including from Mr Cash’s land. Mr Cash appealed on the basis that the physical obstruction also prevented lawful use of the right of way.
The Court of Appeal allowed the appeal in part. Unlawful use of an easement does not destroy the property interest and Ashdale was not entitled to prevent lawful uses of the right of way merely because there had been unlawful uses. In a rare situation, where the manner in which the easement was being exercised meant that it was impossible to separate out lawful from unlawful use, and the dominant owner showed no genuine need or intention to use the easement for purely lawful purposes, the court might authorise complete obstruction of the user.
In this case, given Mr Cash’s previous behaviour, a declaration should be granted that Ashdale was entitled to obstruct the access road until Ashdale was reasonably satisfied that Mr Cash wished to use his land for agricultural purposes and required access for that purpose. To the extent that the original declaration was more extensive than that, it should be set aside.
