Posted: Tuesday, 19 May 2009 @ 19:32
A right of way is normally enjoyed along a specific route over someone's land. Sometimes the route of a right of way can be inconvenient to the owner of the land over which the right is enjoyed (particularly if the landowner wishes to develop the land) and a recent case has examined whether the landowner has a right to re-route a right of way.
The case has confirmed that a landowner has no right to re-route a right of way (unless the terms of the right of way expressly allow this).
If a landowner obstructs a right of way then whoever enjoys the right may seek an injunction (requiring the obstruction to be removed) or damages for the loss of the right of way.
In this recent case, the Court decided that if a landowner owns adjoining land over which the right of way could just as conveniently be exercised then this may influence whether an injunction is granted or whether damages are awarded instead.
Landowners (especially developers) may therefore be tempted to offer alternative routes for inconvenient rights of way in the hope that the Court will award nominal damages (as there is likely to be no real loss suffered if an equally convenient right of way can be exercised over the alternative route).
This is a high risk strategy, however, as re-routing the right of way does not have the affect of extinguishing the original right. Whether the Court decides to grant an injunction may be influenced by the availablility of an alternative right but equally might be affected by the conduct of the parties (the Courts tend to look unfavourably on those who deliberately ride roughshod over the legal rights of others).
Inconvenient rights of way crossing land are, of course, just one of a number of traps for the unwary developer.
Steven Petty, Commercial Property Solicitor
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