20 April 2016

Development Q&A

Development Q&A: Interfering with rights of way, Dean Monk answers your questions.

Q:    My neighbour has a right of way over my land. I want to redevelop. Can I interfere with or reduce the right of way?

A:    Yes, but only in certain circumstances.

If the right of way is an express right (i.e. set out in a deed of grant or other document), your contractual right to interfere with the right of way will be dictated by the terms of that deed. If the right of way was created by prescription (i.e. continued long use) you will have no express rights to interfere with the use. 

Where the right of way is more extensive than your neighbour needs, then, normally,  you can reduce it provided it can be substantially and practically exercised as conveniently afterwards as it was beforehand.

Whilst you do not have a unilateral right to divert the route of the right of way, or block it temporarily, your neighbour will struggle to obtain an injunction if it is not substantially prejudiced by the diversion or interruption.

With major developments, the Local Authority can exercise S.237 powers to buy out any rights of way or other easements that would prevent the development proceeding.

SUMMARY:  If a developer does not have express rights to interfere with an adjoining landowner's right of way, this does not necessarily mean he cannot proceed without the neighbour's agreement.

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