In Heslop v Bishton, H constructed a wall and two pillars on his property in order to erect a gate. B had a pedestrian right of way over approximately half of the land; from one end of the wall up to the pillar and including half of the gateway. The presence of the wall and the pillar meant that B was left with access which was only 16 inches wide. This was too narrow to enable the access to be used to manoeuvre a wheelie bin.

B complained that H had substantially interfered with B's right of way. In his defence, H argued that B was not in practice constrained to just 16 inches of the gateway because B had a common law right to deviate around the obstruction onto the rest of the gateway in order to pass through it.

The court agreed that, where a landowner obstructs a right of way on his land, and the obstacle cannot easily be moved, the person benefiting from the right of way can deviate around the obstruction using other land owned by the landowner. However, it emphasised that the owner of the land burdened by a right of way has no right to alter its route, unless that right is an express or implied term of the grant of the right.

The court distinguished Greenwich NHS Trust v London & Quadrant Housing Association. In this case an NHS Trust wanted to redevelop a hospital site. Planning permission depended on realigning an access road so as to make a better junction with the main road. The proposed realignment was extensive and would involve road users passing over additional land not part of the original right of way, and similarly being prevented from using part of the original route. The Trust was not able to proceed unless it had effectively eliminated the possibility that the beneficiaries of the right of way could seek to prevent the works by applying for an injunction. In the circumstances, the court granted a declaration that it would not grant injunctive relief to any applicant, who would instead be restricted to a claim for damages.

The court in Heslop v Bishton agreed that, since injunctions are an equitable remedy, the existence of an equally convenient right of way may affect the remedy available to the holder of the original right for interference with it. However, the court did not think that the existence of the alternative route could extinguish the right itself.

Furthermore, the right to deviate around an obstacle was an equitable right. It would be highly unjust if an existing legal right could be extinguished by the creation of an equitable right, which was more precarious.

The court therefore upheld the declaration made by the lower court that the erection of the wall and the pillar constituted a substantial interference with B's right of way. It affirmed the lower court's ruling that as long as that obstruction subsisted B would be allowed to use additional land belonging to H in order to make effective use of the gateway.

Things to consider

It is possible to expressly provide for the terms of an easement to be varied at the option of the grantor. In March's edition of Property update, we reviewed the case of Trustees Ltd v Kyriacos Papakyriacou and Dina Papakyriacou, which confirmed that, where the terms of the express grant of an easement provide for a variation by the grantor in its hours of use within certain specified limits, this is enforceable and can be operated by successors in title to the grantor.

Variations to the route of a right of way are more complex and consideration should always be given to whether the new route should be registered at the Land Registry. Ideally the area of land within which the right may be moved should be identified at the outset.

The Law Commission has recommended that the jurisdiction of the Lands Tribunal under section 84 of the Law of Property Act 1925 to modify the terms of restrictive covenants should be amended to also allow modifications to easements.