It is common for rights of way over property to be reserved if the seller retains other land in the vicinity of the sold land to which he wishes to gain access.
A recent Court of Appeal case clarifies and restates the principle that such a right of way can only be exercised for the benefit of the land which it was originally stated to benefit and that it cannot be used to gain access to other land.
The case in question concerned a long-running dispute between two neighbouring landowners in Northamptonshire. Mr Giles owned a farmhouse and buildings and a driveway leading to them. The fields on either side of the driveway, which were known as the Paddock, were owned by Mr Tarry, who had been granted a right of way over the driveway in order to gain access to them.
Relations between Mr Giles and Mr Tarry were clearly always difficult and it was said that a state of virtual war existed between the two men. Court proceedings were originally started in 1993 and there have been numerous disputes over the years, culminating in their appearance in the Court of Appeal in 2012.
The cause of part of the present dispute was Mr Tarry’s wish to graze his sheep on land adjoining the Paddock. He was aware that he had no right of way over the driveway for the purpose of herding his sheep along it and into the Paddock in order to gain access to the adjacent grazing land. To do so would be unlawful as the right of way was not granted for the benefit of the adjacent land.
Mr Tarry and his family decided to try to circumvent this difficulty by herding the sheep along the driveway, onto the Paddock and then out onto a public highway. Then, after a brief pause, they drove the sheep from the public highway back onto the Paddock, whence the sheep were free to wander onto and graze on the adjoining land.
Mr Tarry argued that as the sheep had not entered the grazing land via the driveway, such use of the right of way was permissible. His argument was upheld by the County Court.
Mr Giles appealed and the Court of Appeal reversed the decision of the lower court, stating that what was important in cases of this nature was the substance and intention of the user of the right of way. Driving the sheep out onto the public highway before re-entering the Paddock was, in the Court’s view, ‘a somewhat artificial device’ and the true substance and intention was for Mr Tarry to use the right of way to access land other than the Paddock. Such use was not deemed permissible and he could no longer exercise the right of way in this manner.