Understanding your rights: the thorny issue of rights of way

Disputes over rights of way typically flare up where there is a change in how the right is being used, typically a consequence of development of land or intensification of existing use.

At the risk of over simplifying an area of law that is far from straightforward, rights of way can be granted by deed to a property or they may be created by long use for 20 years. Rights that are granted may be limited by words e.g. a right for agricultural use only. Rights acquired by use will be limited by the extent and nature of use over the years e.g. a right of way that  has always been used to access your neighbour’s land on foot can only ever be a footpath.  

Diversification and changing use of farms and farmland is a ’red flag’ when it comes to potential disputes and if access to your proposed development involves use of a right of way, it is sensible to address the potential for dispute at the earliest opportunity when your relationships with neighbours are good and arrangements can be put in place that are acceptable to you both. Take the recent case of the owner of a plant nursery and a field where potatoes were grown who had a right of way in connection with the use of the land as agricultural land only; the business diversified and one tea room, shop and car park later the Court found that the diversification meant that the easement was being used excessively and that use was not agricultural.

What if the right of way had not had any restrictions imposed on its use, had been acquired over time and the change of use was to cottages for holiday lets instead?  In this situation a Court would look at the way that the right had been used and consider whether the change was a radical change in the character of the land and whether the result would mean a substantial increase in burden. Different judges can reach different decisions as to whether particular facts amount to a "radical change” or a "substantial burden" and so litigation can be a lottery

And finally who pays for repair of the right of way if there is an intensification or change of use? Unless there is an express agreement about maintenance parties often fall out over who is liable to pay for repair where parties feel that there has been additional wear that they should not have to pay for. Again this is something to consider and reach agreement on before embarking on your project.

The issue of rights of way or easements may be thorny one but still no reason to pass up the opportunity to embark on a diversification or development project. The key is to think about the issue at the start of your journey and not as an expensive afterthought.

For any help and advice contact Johanne Spittle on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email johanne.spittle@warekay.co.uk and quote NFU.