“Extended” rights of way?
On the facts of the case, none of the arguments put forward to extend the right of way were successful. That in itself sends a message that while there may be some limited ways in which a right of way might be extended, a court will look very carefully indeed at whether they apply to the facts of any particular situation. In reality, therefore, any extension of a right of way is very clearly to be considered an exception rather than the norm.
These issues can have far-reaching consequences for the parties involved, as inevitably they are linked to development and a potential intensification of the use of the right of way. One such common scenario might be where access to a house is along a right of way granted over university/college-owned land. Over time, the grounds of the house have been extended with additional pieces of land. The right of way has always been used to access the house and the garden or garage etc. At some later stage, the owner of the house considers the possibility of building a new home on the additional piece of land and intends to continue using the private road for access to the new house.
These facts are similar to the facts of Parker v Roberts. In that case, the right of way was over a private road owned by Mr & Mrs Parker. The additional land was referred to as the Yellow Land which had formed part of the garden but was now intended to be developed by Mr Roberts. Mr & Mrs Parker objected to the development and sought ways to limit it. By now, the Yellow Land was otherwise landlocked. Mr & Mrs Parker argued (ultimately successfully) that the express right of way to access Mr Roberts’ house did not enable him to use the access to access the Yellow Land if the Yellow Land was to be developed and used entirely separately from the house.
There were three main principles addressed by this case.
Firstly, the primary principle is that a right of way cannot be used to access a different piece of land (Plot B or, here, the Yellow Land). The limited exception to this is if the use of Plot B is ancillary to the use of Plot A i.e. as a garden or garage etc. However, this limited exception only applies for as long as Plot B is in fact used in this way.
Secondly, the principle of “mutual benefit and burden” ensures that where the owner of the private road was entitled under the terms of the grant to a maintenance contribution, the new owners of Plot A can be required to make that contribution. Here, unusually, there was an express right for the owners of the Yellow Land to contribute towards the maintenance of the road. Mr Roberts tried to argue that under the principle of mutual benefit and burden, as he (and any subsequent purchaser) was obliged to pay a contribution towards the road then the scope of the right of way should be extended to allow him to use the Yellow Land independently of the house. The court rejected that proposal.
Finally, on a similar theme, Mr Roberts argued that, as a matter of interpretation, as he was obliged to contribute to the maintenance of the road, it surely must have been the case that the parties intended the Yellow Land to benefit from the right of way also. While the High Court first considering the case had some sympathy with this argument, the Court of Appeal rejected it. They did so regardless of the fact that the strict interpretation of the grant of the right of way in this case was unusual (i.e. that the owner of the Yellow Land had to contribute towards the maintenance of the road but had no independent right to use it). They considered that the wording of the relevant covenant was quite clear and could not be extended.
The outcome of the case was that while Mr Roberts was fully entitled to build on his own land, he wouldn’t be able to access it if the use of that land stopped being ancillary to the house.
While this case turned on its own facts, it is useful to see the very limited way in which the courts are likely to sanction any extension of a right of way beyond the scope of the express grant. For university/college landowners, it is a useful example of how important it is to keep an eye on how any of rights across your land are being used in practice, and any suggestion of the express rights being exceeded should be considered carefully.