A case in which a developer partly obstructed a right of way demonstrates that injunctions are a discretionary remedy

In a comprehensive judgment, Lea v Ward, the High Court has ruled on the extent of a right of way, whether obstructions to it were an actionable interference, whether it could be altered unilaterally and which remedies were appropriate.

The facts were fairly straightforward. Mr Lea's property in Shropshire had the benefit of a right of way over Mr Ward's neighbouring land by virtue of a deed of gift granted in 1979. As is so often the case with old documents, the description of the right of way was imprecise. It was worded as follows:

'over the track or way along the south-westerly side of enclosure number 4362 that is to say between the said point D and the point marked F on the said plan'.

The scale of the plan did not identify points D or F with any accuracy and it did not indicate the width of the right of way. Mr Ward wanted to develop his land. For a period, Mr Lea's right of way was obstructed by temporary fencing. Later building works were alleged to have obstructed and altered the right of way.

When the resulting dispute between the parties reached court, it had to determine the extent of the right of way that had been granted. Only when it had done that, could it go on to consider whether there had been any actionable interference with the right of way and, if so, what remedies should be available.

Extent of the right of way

Mr Lea's case was that the right of way extended to the whole of a strip of land that was eight metres wide. Mr Ward argued that it was limited to whatever track was discernible - over that strip - at the time of the grant back in 1979.

The judge's starting point was to look at the wording of the grant. This referred to the 'track or way' and the natural meaning of this was that the easement was granted over something physically discernible at the time of the grant - 'something recognisable and having been beaten by use'.

As is the case with all issues of contractual interpretation, the judge needed to consider the wording of the grant against the surrounding circumstances at the time of the grant, in order to determine the parties' original intention. The surrounding circumstances included the historic use of the land before 1979 and the purpose of the deed of gift.

Based on all of this, the court agreed with Mr Ward and held that the parties' intention had been that the right of way applied only to the track that was used in 1979, and it construed that track to be 3.75 metres in width.

Actionable interference by fencing?

For a five month period, some perimeter fencing temporarily, but completely, blocked Mr Lea's right of way. During this period it might have been possible for him to have moved the fencing when he needed to use the track but, even so, the court agreed that there was a substantial obstruction to his use of it.

The test for 'actionable interference' was satisfied: it was entirely reasonable that Mr Lea should have insisted on being able to use the right of way and it was clear that the right of way could not be substantially and practically exercised as conveniently as before the fencing was put up.

However, the court held that Mr Lea was entitled to nominal damages of only £5. This was because the practical effect on him was very limited. The court emphasised that the purpose of damages as a remedy is to compensate an injured party for its loss and not as a punishment for the offending party.

Alteration in the route of the easement

More recent building works carried out on Mr Ward's land had altered the route of the right of way that was granted in 1979. The overall effect of these was to obstruct part of the original easement and to change its route.

It is established law that a servient landowner (the one whose land the easement crosses) has no right to alter the route of a right of way without the beneficiary's agreement, unless that is an express or implied term of the original grant, or unless that right is subsequently conferred on him. In this case, there was no such right. Accordingly, even though an alternative route had been provided, Mr Lea could still succeed in his claim for actionable interference with his original right of way. The court found in his favour.

Was an injunction the appropriate remedy?

Although Mr Lea succeeded in his claim, the court said the provision of a new or alternative access way was relevant to the consideration of what remedy should be granted and, in particular, whether an injunction might be appropriate.

An injunction is a discretionary remedy. In deciding whether the facts warranted injunctive relief, the court took into account that an altered route had been made available and the behaviour of each party towards the other. This was said to be understandable and it did not tip the balance either way.

The court concluded that so long as Mr Ward agreed to remove part of the obstruction to the original right of way and to grant a new easement to Mr Lea, it would not grant an injunction.

As to damages, the court found that the degree of interference with the easement was short-lived - the obstructing physical structures had only been in place since 2015 - and the degree of interference was not significant. Accordingly, in relation to this interference, only modest damages of £500 were awarded to Mr Lea.

This case introduces no new law but provides a useful illustration of the practical and legal issues that need to be considered where an imprecise easement has been granted and a subsequent dispute arises.

The developer was fortunate in this case to be able to negotiate its way out of an injunction. Developers need to be wary of interfering with easements, which can affect the marketability of a development and their ability to finance or refinance it. Their best course is ordinarily to negotiate the extinguishment or variation of an easement by express agreement. Because injunctions are a discretionary remedy, there can be considerable delay and uncertainty while the matter is resolved through court proceedings. In this case, the temporary interruption occurred between April and September 2015, the new route was completed in January 2016, but the status of the easement was not resolved until the judgment on 6 September 2017.

Lea v Ward [2017] EWHC 2231 (Ch)