Key points:

  • If the beneficiary of an easement is abusing it, consider whether the "excessive" use can be severed from the "proper" use
  • The usual remedy for excessive use is an injunction to restrain use other than that permitted by the easement
  • Where it is impossible to sever the proper use from the excessive use, the burdened owner may be able to prevent any use of the right

Facts of Ashdale Land and Property Company Limited v Maioriello

The claimant had sold a field which formed part of its land, together with the benefit of a right of way over an unmade up road which gave access to the main road. The right of way was expressed to be in connection with the use of the field for agricultural purposes only, with or without vehicles, farm machinery and animals.

Some time later, the field was bought by gypsies. Lorries, cars and vans were driven along the road, including for the transportation of building materials to create hardstanding for caravans. This constituted a breach of the terms of the easement, and was causing damage to the road as well as possible reduction in value of the properties along the road.

The claimant obtained several injunctions restricting the gypsies' use of the road, including an interim injunction which prohibited any vehicles from passing along the road to the field. All were ignored. The claimant decided to take self-help measures and erected four large concrete blocks at the end of the road where it abutted the field.

The gypsies continued to use the road for pedestrian access, but also then started to park their vehicles on the road, as they could not reach their land. This also constituted a breach of the easement, since the right granted was to pass along the road, not to stop on it.

The claimant sought a declaration that it was entitled to obstruct all access to the field from the road. It argued that the usual remedy of injunctive relief had been tried and found to be seriously wanting because the court's orders had been repeatedly ignored, and it was not practicable to enforce the orders through the initiation of criminal proceedings.

The gypsies submitted that it would be wholly disproportionate for the claimant to be permitted to obstruct all access to their land. This would prevent them from using the field for agricultural purposes, and would seriously depreciate its value.

However, the court agreed that the only way for the claimant to prevent the trespasses on the road was to obstruct all access to the field. Previous court orders had been breached repeatedly, and if access for vehicles was permitted, gypsies would return to the site. The gypsies had purchased the land for use as a caravan site and had no genuine intention to use the land for agricultural purposes. The court therefore made the declaration sought by the claimant.

Things to consider

There are two issues to consider when faced with excessive use of an easement.

The first is whether the excessive use can be severed from the proper use. The usual remedy for excessive use is not the obstruction of the use altogether, but an injunction to restrain use other than that permitted by the easement. Where, however, it is impossible to sever the "proper" use from the excessive use, the burdened owner may prevent any use of the right. An example of where the courts have held that it is not possible to sever the excessive use is where a right to drain clean water is being used to drain both clean water and foul water.

The second is to what extent the court will go beyond the grant of an injunction, and permit the dominant owner to take practical steps to prevent the excessive user. The High Court ruled in this case that if an injunction prohibiting any use that was outside the scope of the grant were an effective remedy, a court would not normally grant a declaration sanctioning steps to prevent any use of the right. However, where an injunction would not be an adequate remedy, such a declaration might be granted if it were considered proportionate, just and appropriate.

Where, as here, the burdened owner wishes to take such steps before the case is heard by the court, it is only advisable to do so after seeking appropriate advice. In this case, following consultation with the emergency services, the claimant arranged the concrete blocks so as to prevent vehicular access to the site, while at the same time allowing for wheelchair and stretcher access.