Can rights of way be ended by ‘intensification of use’?

One of the most contentious aspects of rights of way is where there is a substantial increase or ‘intensification’ of use. This invariably happens when there is a change of use by the user of the right of way following redevelopment of land and buildings typically a conversion of a farm house and buildings to residential use or a farm diversification project such as a new camping and caravan site.

If the right of way has been created by a legal document it will be an ‘express grant’ and how that right can be exercised will depend on the wording used in the document creating it. So for example if the grant says a roadway can be used ‘for all purposes’ a change of use of the land benefitting from the right of way is lawful. However, if as a result of that change, the use of the roadway is substantially intensified then, depending on the extent of the intensification, there may be excessive use which is not lawful. 

Where rights are created by long use the court’s approach is that if the development of the land benefitting from the right represents a radical change in character or identity and it also results in a substantial increase in or alteration of the burden on the owner of the right of way land, then the right to enjoy the easement is suspended or lost.

If you are planning development of your land and it is accessed by a right of way you will need to check how your right has been created, what the existing use is and to consider whether your development may lead to an intensification of use. 

Johanne Spittle, Director & Head of Litigation, Ware & Kay Solicitors York 01904 716000, Wetherby 01937 5983210  or email johanne.spittle@warekay.co.uk.