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28th February 2018

Can an easement be diverted via the “back door”?

The recent case of Lea v Ward [1] produced a decision which appears to challenge the established principle that it is not possible to change the route of an easement, unless there are specific terms in the grant.  If this is the case then it could have serious ramifications for land owners that retain rights over land sold off for development.

Lea v Ward

The case concerned a strip of land at Dodecote Grange in Childs Ercall near Market Drayton, Shropshire.  The land had been in the possession of the Lea family since approximately 1865 and had been worked as an arable farm since about 1964.  The farm was owned and run by Geoffrey Lea (“GL”) who had two sons; Michael (“ML”) and Robert (“RL”). 

GL retired in 1979 and it was at that time that he made a gift of land to RL.  As part of this gift he reserved various rights of way over the gifted land including over the strip which formed part of the gift.  The retained land was let to and subsequently inherited by ML. RL sold off his land in parcels and the land including the strip was eventually sold to David Ward (“DW”), who subsequently tried to develop the land, including the strip. In doing so he provided an alternative route for the benefit of ML’s land.

ML brought a claim against DW regarding the existence, location and width of the right of way over the strip. ML argued that the right of way was across the whole of the strip whilst DW maintained that the right of way was only across part of the strip that was discernible as a track at the time the grant was made in 1979.

Deputy High Court Judge Lance Ashworth QC had several questions to decide:

  • How was the width of the easement to be determined? Should it be, as argued by DW, limited to the width of the discernible track as at the time of the 1979 Deed?
  • Had DW interfered with the right of way and as such be subject to an injunction to prevent any further interference?
  • Did DW have the right to offer an alternative route for the easement if the current route needed to be incorporated into the development?

For the purposes of this discussion, it is the third of these questions that is most pertinent.
 

Is there a right to offer an alternative route?

The High Court case of Greenwich Healthcare National Health Service Trust v London and Quadrant Housing Trust and Others [2] offers a clear summary of  an established principle:

“a servient owner has no right to alter the route of an easement of way unless such a right is an express or implied term of the grant of the easement or is subsequently conferred on him.”

Lightman J went on to discuss (obiter) whether substantial interference with the right could lead to a different conclusion:

“The argument has been addressed to me that, even if the servient owner has no right to realign, none the less such a realignment will not constitute an actionable interference with the easement if the realigned route is equally convenient, and that this is a fortiori in cases where no grounds exist for any reasonable objection to the realignment.. There is something to be said for the approach that the test should be whether the dominant owner ‘has really lost anything’ by the alteration.. on the other hand, it may be said that the dominant owner loses the property right to the easement over the original way.”

Although Lightman J refused to reach a conclusion on the above point, it suggests that the question lies not as one of rights but rather as one of remedies. It is precisely this conclusion that was reached in the case of Heslop v Bishton [3] and was subsequently considered in Lea v Ward.

The provision of a new route does not, of itself, prevent an action being brought in relation to the original route. The court has discretion as to whether it grants an injunction in relation to interference with the original route. For Lance Ashworth QC, following the decision in the B&Q case [4], his decision rested on whether the alternative route was “equally convenient” for ML. He decided that, with suitable modifications and the payment of damages, the alternative route could be equally convenient.
 

Conclusion

It is debatable as to whether the decision in Lea v Ward does anything more than clarify the existing position. At no point is it suggested that a subsisting right can be extinguished by the provision of an alternative route, nor is it suggested that a land owner has the right to unilaterally alter the route of an easement. Rather the case takes a practical approach to settling disputes regarding rights of way.

If it is possible to settle a dispute by granting a new right of way over an alternative, and equally convenient, route, potentially accompanied by damages, then this remedy is open to the court to approve.

However, land owners or developers who look at this and think they can effectively pay damages in order to secure a new route should think carefully before proceeding. There are two significant factors to consider:

  • The original right will still exist and could, potentially, be the source of a future action for interference.
  • The remedy granted by the court is discretionary. It is not obliged to accept an alternative route plus damages solution.

A safer approach for landowners would be to agree a surrender of the existing right (potentially for a fee) and the grant of a new right over the alternative route. Alternatively, when creating new rights over land that may have future development potential, draft the rights in such a way as to include so called “lift and shift” provisions that explicitly allow the re-routing of the right of way.

For further information please contact Natalie Minott on 01223 447421 or click here to email Natalie.

 

References

[1] Lea v Ward [2017] EWHC 2231 (Ch) (Ch D (Birmingham))

[2] Greenwich Healthcare National Service Trust v London and Quadrant Housing Trust and Others [1998] 1 WLR 1749

[3] Heslop v Bishton [2009] EWHC 607 (Ch)

[4] B&Q Plc v Liverpool and Lancashire Properties (2001) 81 P & CR 20

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