When right of way is not enough

Most people would agree that it is usually preferable to own the access to your property but this is not always possible.

There are down sides to owning your own access, such as the costs of maintaining and repairing it and preventing trespass, so when owning the access is not possible the next best option is to be granted a right of way over an access that is owned by a third party. 

The extent of the right of way is enormously variable and depends on what was granted at the time the right of way was given.  For example, it may give you access on foot only or with vehicles or animals, for agricultural purposes, for all purposes or for access to and from a particular property.

Most modern farm machinery is much larger and wider than it was years ago, making some rights of way less than adequate.  In a recent case (Oliver v Symonds) the question of the extent of the right of way arose and whether it included an implied right to overhang onto adjoining land.

In every case the starting point would be to examine the original grant of the right.  This has to be looked at as if at the time of the grant and for the original purpose.  Even if the right granted is not fit for purpose it might be interpreted as having additional flexibility that will allow an implied right.  In the case of Oliver v Symonds, which was a lengthy and costly dispute, the court decided that the size of modern farming equipment was not a reason to imply an extension of the right of way.

The case shows that it is impossible to envisage every use that might be required in the future, especially with the amount of diversification on farms today.  Make sure you are aware of the extent of your right of way and, if you have any doubts, contact us for advice at an early stage.

Disputes between neighbours can be particularly difficult and expensive.  For this reason, we take the view that litigation should be avoided unless all other options have been exhausted.