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Rights of way and perpetual motion
- AuthorAndrew Turner
If you are granted a vehicular right of way over neighbouring land, and the right is described as a right to “pass and repass”, are you allowed to park on that neighbouring land so that you can load or unload? What about stopping so that a passenger can get out of your vehicle and walk onto your property?
It might seem absurd to ask the question but it often arises in practice.
The answer to the question in legal terms is this: the grant of a right of way is also the grant of such ancillary rights that are reasonably necessary to allow the right to be exercised or enjoyed.
Let’s translate this legal gibberish into simple terms and look at a practical example.
Your neighbour owns a yard. You own a building next to the yard. To gain access to the rear loading bay of your building, you enjoy a right of way across the neighbour’s yard. The right is stated in the deeds as “a right to pass and repass”. You routinely park in the yard next to the door to your loading bay so that you can load and unload your goods. You usually only park for a few minutes at a time before driving out of the yard.
One day, the owner of the yard collars you and tells you that your right of way is simply a right to pass across the yard and back again. In other words, you can drive to your loading bay and back to the yard entrance, but you cannot stop.
You argue that this is absurd and that the right of way is meaningless unless you can, at the very least, leave the vehicle. The neighbour disagrees and says that it’s tough luck, and that you should have investigated what “pass and repass” means before buying your property.
Who is right?
Perhaps no surprise, but you are right. This same point was decided in the case of Bulstrode v Lambert in 1953. In that case, involving a similar factual situation, the Court ruled that unless the party with the benefit of the right of way had the ability to load and unload his vehicle in the yard area, the right of way would be virtually useless. The Court therefore concluded that the claimant’s right to load and unload his vehicles in the yard formed a right that was ancillary to the right of way. It was reasonably necessary to allow enjoyment of the right of way.
There is clearly a distinction to be drawn between long term parking and temporary stopping for the purpose of collections or deliveries, whether of passengers or of goods. The Court will readily accept that temporary parking is an integral part of a right of way and any attempt by a landowner to argue a case that a right of way is limited to continuous movement will be given short shrift by the Court. Nevertheless, it is an argument that, surprisingly perhaps, still appears from time to time in practice.
If you have any questions in relation to the issues raised in this blog, please contact Andrew Turner at firstname.lastname@example.org.