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Home / News and Insights / Blogs / Real Estate / 260: The ‘right way’ to use a right of way

The case of McGill v Stewart concerned a dispute between two adjoining neighbours whose land was accessed by a shared driveway. The Court considered the limitations imposed by a narrow right of way granted for use by ‘private motor vehicles’ and whether this meant only vehicles owned by, and used by, the defendants for domestic purposes could access the right of way.

Background

The claimant and the defendant owned neighbouring properties in Buckinghamshire that were accessed by a narrow, single lane which was the only reasonable means of access to both properties. McGill owned the lane and claimed that the Stewarts had failed to observe restrictions set out in a deed of transfer which granted:

‘The right on foot and with or without private motor vehicles over and along the roadway running between the points marked A and B on the annexed plan subject to the Transferee contributing one third of the cost of maintaining such roadway.’

The deed also contained the following restrictive covenant:

‘Not to carry on or permit any trade business or profession on the property hereby transferred nor to do or permit anything thereon which may be or grow to be a nuisance or annoyance to the Transferors or the owners or occupiers of the adjoining lands.’

McGill argued that this meant no vehicles other than those owned by the Stewarts could use the lane. They argued that there had been a ‘longstanding misuse’ of the driveway by the defendant as they had allowed trade vehicles and HGV lorries, amongst other vehicles, to use the lane to access their property.

Judgment

The Court ruled in favour of the Stewarts, concluding that any vehicles that were necessary for use of the property as a private dwelling could use the right of way, which included use of the lane for visitors, delivery drivers and trade vehicles.

In making its decision, the Court considered that the right of way contained only two limitations, one being the wording of the right granted in the deed of transfer and the other that the physical width of the roadway itself meant it could be used for these purposes only.

The Court held that the restriction in the right of way should be construed to mean ‘vehicles using the lane for the purposes of the use of the private dwelling on this land’, because:

  • (a) the road is clearly suitable for the sorts of typical vehicles one encounters in everyday life at a dwelling such as postal deliveries;
  • (b) the purpose of the grant of the land (served only by the lane) is for a private dwelling and it would be inconsistent with the grant and basic commercial efficacy if one could not have the usual and customary forms of access such as for repairs to ensure the property remains useable for the demised purpose; and
  • (c) the express restrictions on user for commercial purposes do not in my judgment bite on such things as visiting tradespeople since that is not meaningfully the use of the dwelling for commercial purposes.

The Court did however state that any additional use of the lane for purposes not considered strictly necessary or essential would need to be explicitly agreed between the parties. It held that use of the lane for accessing and egressing from the property or to see friends and family would be considered necessary to ensure the house remains able to be used as a private dwelling. This however would not include use of the pathway for demolition or significant new construction.

The Court suggested that:

‘in constructing our places of residence we should learn from beavers and always build with more than one way in or out, because the single narrow lane and its use has become a source of dispute in this human context.’

Comment

The Court also notably commented that parties should aim to settle trivial disputes of this nature before the need for litigation arises, citing that cases such as these neighbour disputes  ‘compete for [Court] time’ with some of the most serious and grave cases and such disputes would be better settled by alternative dispute resolution.

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