Excessive Use of Rights of Way

Over the last few years we have seen an increase in issues arising for development sites where the access to the site is over a private access and not an adopted highway, as just because a development site benefits from a right of way over a private road, this does not automatically mean that the right of way may be used to access the property for all purposes, and in particular, the construction and use of the property for the intended residential or commercial development.

Accordingly, when seeking to purchase development land with the benefit of a right of way over a private access road, the underlying title documents need to be considered at the outset of the transaction to establish whether a right of way exists, and if so, whether there are any restrictions or limitations on the use of that right of way.

There are two main ways in which a right of way may be acquired: expressly, where rights are granted in a deed such as a transfer or deed or easement, or by prescription, where a right of way is claimed once it has been exercised continuously for a period of 20 years without force, without secrecy and without permission.

Where an express right of way exists then the deed granting the rights must be construed to ascertain the extent, nature and purpose of the right of way. This is a matter of construction and the extent, nature and purpose of a right of way is not always as clear as one would hope. For a prescriptive right of way, the manner and extent of right of way and character of the dominant and servient land needs to be considered to ascertain how the right of way may be exercised and for what purposes.

Rights of way are frequently drafted to state that the right may be used for “all purposes” but this does not automatically mean the right of way can be used for all purposes and it would need to be considered what was in the contemplation of the parties at the time of grant and whether the intention was for the right of way to be truly exercised for all purposes, including future development purposes. Each case must be considered on its own facts and there is considerable case law on the interpretation of rights of way.

Further, just because no use is specified within the right of way this does not automatically mean that a right of way can be used for all purposes.

Within common law there is a principle of excessive user whereby a party cannot exceed the use for which a right of way has been granted. The use of a right of way can be exceeded by exceeding the nature, purpose or amount of that use, i.e. by changing the use of the property and the frequency of the exercise of the right.

The leading authority on excessive user is the case of McAdams Homes Ltd v Robinson - which introduced the following two stage test.:

• Does the development of the dominant land represent a radical change in its character or a change in its identity, as opposed to a mere change or intensification in its use?
• Will the use of the dominant land, as redeveloped, result in a substantial increase or alteration in the burden on the servient land?
• Where the answer to both questions is "yes", the dominant owner's right to enjoy the easement will end, or at least be suspended for so long as the radical change of character and substantial increase in burden are maintained.

In this case the intended development was a change of use of a property from a bakery to two houses and the Court deemed the change of use of the right of way was excessive as it was a “radical change and substantial increase in use of easement”.

Accordingly, if you intend to purchase development land with the benefit of a private right of way we would always advise that advice is taken at the outset to ensure the right of way can be used for the intended purpose. Otherwise, there is a risk that a claim could be made or an injunction sought when the development commences and an argument made that the right of way does not exist for the intended purpose or that the intended purpose exceeds the use.

Where sufficient rights do not exist then a new deed of easement may be required from the owner of the access and they may have requirements for entering into a deed, such as a ransom payment or other consideration and the payment of legal fees.

Additionally, it should also be checked that the development land benefits from rights to carry out any works to the road which are necessary for the development, including making the road up to an adoptable standard or laying services, and that there are sufficient obligations on the owner of the access to enter into any infrastructure agreements necessary for the access or any services to the development site.