UK: Easements – Rights Of Way

Last Updated: 7 March 2012
Article by Emma Humphreys

Maioriello and others v Ashdale Land and Property Company Limited [2011] EWCA Civ 1618


The Court of Appeal has held that the Court should not allow a servient owner to prevent – without time limit - the lawful use of a right of way by one dominant owner in order to stop excessive and unlawful use of the easement by others. The Court therefore held that the terms of an injunction made against the Appellant should be modified.


The Respondent (and originally Claimant) in this case ("Ashdale") owned land in Ripley, Surrey, which included an access road to a large field owned by the various original Defendants. The field has the benefit of a right of way over Ashdale's access road "for agricultural purposes only with or without vehicles, farm machinery and animals".

In 2009, steps were taken to convert the field into a large traveller site which involved lorries, trailers, vans, caravans and construction equipment passing along Ashdale's road by day and night. Various interim injunctions were granted to Ashdale which proved to be ineffective in preventing the continued unlawful use of the road and acts of trespass by the original Defendants. Ashdale accordingly had to resort to laying down concrete blocks to prevent vehicular access to the site along its access road pending trial.

First Instance Decision

At first instance, Ashdale was granted the declaration and injunction it sought, entitling it to obstruct all access over the road. Having had regard to the interests of all those affected, the Court found that the granting of the declaration (and injunction) was proportionate, just and appropriate in all the circumstances of this case, noting that injunctions against the Defendants which sought to prevent the unlawful use of the road had already proved to be ineffective.

The Court found that all of the Defendants had purchased their land intending to use it as a gypsy caravan site, a use that would inevitably lead them to trespass onto Ashdale's land. The Court therefore concluded that anything less than complete obstruction of the access to the Defendants' land would be ineffective in preventing future acts of trespass. The Court also held that the Defendants had (at the very least) all been complicit in the repeated breaches of the Court's Orders. On the facts, the Court held that the 12th Defendant (when purchasing his land) took a gamble that had "seriously backfired" and the Court held he had no genuine intention to use his land for agricultural purposes.

Decision on Appeal

The appeal was submitted by the 12th Defendant. (The 1st Defendant had consented to the original Order against him and the 2nd to 11th Defendants had failed to attend the trial and had not appealed the decision.)

The issue for the Court of Appeal to consider was whether the judge at first instance had been wrong to frame the declaration and injunction at first instance so as to prevent the Appellant from using his property right – without any limit of time or circumstances.

It was held to be basic principle that where the owner of land grants an easement, the easement is not extinguished by its excessive or unlawful use; any misuse should be prevented by the grant of an injunction, supported – if necessary – by proceedings for contempt. The Court noted the exceptional circumstances in this case and felt that the judge had been entitled to conclude that an unusually draconian order was the only practical way of stopping the unauthorised use of the access road by travellers. However, it also noted that the judge had not made any finding that the Appellant was likely to breach any Order or to use the access road unlawfully in the future.

The Court held that, whilst the judge had been correct to seek to prevent use of the access road by the travellers, the case law did not support allowing a servient owner to prevent completely the lawful use of a right of way by one dominant owner in order to stop excessive use by others. Accordingly, the Court found that the case-law did not support the remarkably wide declaration and injunction – without time limit – granted against the Appellant.

However, in light of the exceptional combination of circumstances in this case, the Court of Appeal confirmed that it would have been permissible for the judge to declare that: (i) Ashdale was entitled to obstruct all vehicular use of the access road by the Appellant until it was reasonably satisfied that the use was to be in connection with accessing the land for agricultural purposes or until further Order of the Court; and (ii) Ashdale was entitled to obstruct all pedestrian use of the access road by the Appellant until either the site had been vacated by those using it for non-agricultural purposes, or until Ashdale was reasonably satisfied that the Appellant or any licensee/tenant/purchaser wished to use the access road lawfully, or until further order of the Court. To the extent that the declarations went beyond this, they were set aside.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Emma Humphreys
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