First things first – what is a private right of way? A private right of way is a type of ‘easement’, which, put simply, is a right that benefits one piece of land (known as the ‘dominant land’) over another piece of land owned by someone else (known as the ‘servient land’).
An example of a private right of way is the right for the owner of one piece of land to pass over a track on neighbouring property to access the public highway.
Let’s delve a bit deeper…
In accordance with the leading case on easements, Re Ellenborough Park  EWCA Civ 4, in order to be an easement, a private right of way must have all of the following characteristics:
- there must be two identifiable pieces of land – the dominant land and the servient land
- the right of way must ‘accommodate’ the dominant land, which means that the right of way must be linked to and be of benefit to the dominant land
- the dominant and servient lands must be owned by different persons; and
- finally, the right of way must be capable of forming the subject matter of a grant – a right of way cannot be too wide or too vague.
The Re Ellenborough Park characteristics are illustrated below:
How are private rights of way created?
Private rights of way may be created in a number of different ways. The most common ways that we see in practice are:
- express grant – where the owner of servient land expressly grants a right of way to the owner of dominant land. The express grant may be contained in a transfer, in the grant of a lease or in a standalone document. Your legal advisors will conduct a full review of the deeds to your development site to determine whether there has been an express grant/s. An example might be where a landowner sells part of their land and wishes to maintain rights over the part sold (the servient land) for the benefit of the landowner’s retained land (the dominant land), such as a right of access
- prescription – where the owner of dominant land exercises a right of way over servient land for at least 20 years nec v, nec clam, nec precario (without force, without secrecy and without permission).
Other ways in which private rights of way arise include implied grant (usually where there is a transfer of part of a property), by statute or by will.
What can the dominant owner do on the servient land?
Well… that depends…
Where there is an express grant, what the dominant owner can do on the servient land will depend on what the grant says. A typical grant might say:
“A right of way at all times and for all purposes with or without vehicles over the roadway shown coloured blue on the plan annexed hereto…”
Where a right of way has arisen by prescription, the actual manner in which the right of way has been used will determine the scope of the easement. Here it is important to look at the nature of the use, the purpose of the use and the amount of use to determine the easement’s full extent. Use by the dominant owner must not exceed that for which the right of way was granted or acquired.
“Why do I need know all this?” I hear you say?!
Well… if your development site is subject to an easement, this could have a major impact on your development plans depending on the scope of the easement. To ‘get rid of’ an easement, it will usually need to be expressly released by the owner of the dominant land.
And if you inadvertently interfere with an established right of way, you could find yourself on the wrong side of a claim by the owner of the dominant land for private nuisance. Remedies for an action for private nuisance include an injunction to prevent the interference, or a claim for damages, or both, which may severely hamper or even halt the progress of your development. Note that the interference must be ‘substantial’ to be actionable – the key question derived from case law is “can the right of way be substantially and practically exercised as conveniently as before?” – if the answer is ‘no’, you may be at risk of a claim.
What can you do to prevent private rights from becoming a spanner in your works?
Due diligence is key! The practical steps that you can take to mitigate the impact of private rights of way on your development site include:
- inspect – carry out an in-depth inspection of the site to look for any physical signs of easements such as worn pathways across the land, gaps in hedges, tyre tracks etc. Not only will this help you to identify the existence of any easements but a careful inspection will assist in identifying the scope and the extent of any easement that is identified
- review records – take a look at historic maps and photographs in local archives where available to see if there is any evidence of private rights of way over the land – never assume that a right of way has been abandoned
- raise enquiries – if your due diligence has caused you concern, ask your legal advisors to raise specific enquiries of the seller to address your concerns
- indemnity insurance – it may be possible to secure an indemnity policy to mitigate against the risk of a third party claiming the benefit of an easement in the future.
Your legal advisors will be able to offer advice on these practical steps tailored to your particular development site.
And how do you stop new rights of way from being created? Well that’s easy… signage, signage and yet more signage! The case of Winterburn v Bennett  EWCA Civ 482 held that signage is sufficient to prevent the creation of a private right of way, even where the signage is wholly ignored and no attempt is made to enforce the landowner’s rights. ‘Private property – no public access or right of way – no trespassing’ and such like ought to do the trick.
Finally, paradoxical as it may seem, you may wish to give some thought to regularising any rights of way that may have arisen by prescription by granting a personal licence to the beneficiary. A licence will put you back in the driving seat and give you control as a licence is revocable at any time.
This article is from the first issue of Foundations, our newsletter for those working in the housebuilding industry. To download the latest issue, please visit the newsletter section of our website. For further information please contact Lynsey Ellard or another member of Birketts’ Housebuilders Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at September 2021.