Right In My Way!
The existence of a private right of way over a development site can have a major impact on the site's potential and value.
The developer may have no legal right to terminate the right or vary its route. This can cause problems where, for either financial or practical reasons, a developer is not able or willing to design a scheme which will accommodate it.
So, what scope is there to carry out works which interfere with existing rights of way, and what steps can a developer take to improve its position?
As a first step, the developer should consider what impact the works will have on the right of way, and whether this will amount to "actionable interference".
The legal test governing what amounts to "actionable interference" looks at whether the right-holder will substantially and practically be able to exercise the right as conveniently after the development, as before. The Courts look at how a right is being used, and is not concerned with what use might be considered to be "reasonable". So, for example:
- narrowing a portion of the route of a right of way may not amount to actionable interference, if other parts of the route are just as narrow; but
- reducing the area over which a right is granted so that turning vehicles is no longer possible will amount to actionable interference, regardless of whether the right-holder owns other nearby land on which it is able to turn its vehicles.
If the conclusion reached is that the proposed interference is actionable, the developer may face a claim from the right holder if it goes ahead with its plans.
A developer who interferes with a right of way may face a claim for an injunction, or damages, or both.
An injunction will prevent the proposed works from going ahead and, as such, is the "ultimate" remedy available to a right-holder.
Whether an injunction will be granted is entirely at the Court's discretion- it is an equitable remedy and the Court will be influenced by factors such as the parties' behaviour, and the surrounding circumstances. In the recent High Court decision of Lea v Ward  EWHC 2231, the Court was persuaded against granting an injunction on condition that an alternative, equally convenient route would be made available.
A right-holder may also claim damages, either as well as or in lieu of an injunction.
If granted, an award of damages will be compensatory in nature, and will look to address either past obstructions of the right and/or, where an injunction is refused, for obstructions which will continue into the future. Although there are many potential heads of compensation, it is possible that an award would compensate the right-holder for the loss of his or her ability to negotiate a release of the right of way, rather than compensating the loss of amenity. This is likely to be a particular concern for a developer, whose profits could be affected substantially by such an award.
What can a developer do to avoid or minimise these risks?
A developer can avoid these risks entirely:
- by designing the scheme to accommodate the existing right or avoid actionable interference with it; or
- in appropriate cases, by convincing the Local Authority to exercise its statutory powers to acquire the rights of way in question.
Where this is not possible, the preference for most developers will be to negotiate an express release or variation of the right of way before starting on site. This will be possible only following negotiation with the right-holder.
Often a developer will be well advised to consult with the right-holder early on in the planning process, so that its opinions can be gauged and taken into account in the design of the scheme, and any alternative route which can be offered. Such negotiations may also help a developer to mitigate the risk of an injunction being awarded.
In this situation, planning is often key. Early engagement with the issue should result in the developer having the best possible understanding of the situation, and the maximum influence over the outcome.
Charlotte is a senior associate in our Property Litigation team.