Easements: interference and remedies

A Practice note explaining what constitutes interference with an easement and what remedies are available when interference occurs.
PLC Property
Contents

Abbreviations

The following abbreviations are used in this note:

CA 2003: Communications Act 2003.

PA 2008: Planning Act 2008.

PA 1832: Prescription Act 1832.

TCPA 1990: Town and Country Planning Act 1990.

 

Practice notes on easements

This practice note forms part of a series of practice notes considering the various aspects of the law governing easements.

The other practice notes in the series are:

In addition, the Practice note, Overriding interests and the Land Registration Act 2002 (www.practicallaw.com/8-107-4576) covers the rules governing overriding easements.

 

Interference with an easement

The law governing what constitutes interference with an easement is based predominantly on common law precedent, derived from case law.

This practice note looks at some defining decisions and some particular types of interference that are commonly encountered in practice. It then briefly goes on to consider the remedies available to the party entitled to the benefit of the easement (the dominant owner).

Interference with an easement gives rise to an action for private nuisance (www.practicallaw.com/8-107-6896).

The party claiming interference with an easement must show:

 

Particular types of interference

Private rights of way

At common law, it is long established that any appreciable obstruction of a public highway is actionable as a nuisance. A person seeking to enforce use of a public right of way by way of an injunction or damages must be able to show a special interest, the locus standi being essentially the same as for a public nuisance (see Legal update, Whether earlier court proceedings prevented a right of way being asserted (High Court) (www.practicallaw.com/6-519-5631)). It is also a criminal offence for any person, without lawful authority, to wilfully obstruct a highway (section 137, Highways Act 1980). For more information on highways, see Practice note, Establishing highways at common law (www.practicallaw.com/8-101-4484).

However, a private right of way is an easement, so any obstruction must be substantial to be actionable (see Interference with an easement).

There can be no substantial interference if, despite the obstruction, the right of way can be "practically and substantially exercised as conveniently" as it was before (Hutton v Hamboro (1860) 2 F. & F. 218 and Colls v Home and Colonial stores Ltd [1904] UKHL 1).

What amounts to substantial interference?

In B&Q plc v Liverpool & Lancashire Properties Ltd [2000] EWHC 463 (Ch), the High Court considered what would amount to substantial interference with an express right of way. From the authorities considered in that case three propositions arise:

  • The test of an actionable interference is not whether what the grantee is left with is reasonable, but whether insisting on being able to use the whole of what was granted is reasonable.

  • It is not open to the grantor to deprive the grantee of his preferred means of use and argue that someone else would do things differently, unless the grantee's preference is unreasonable or perverse.

  • If the grantee has contracted for the relative luxury of an extensive right, he should not be deprived of that right merely because it is a luxury and the reduced right would be all that was reasonably required. The test is not one of necessity or reasonable necessity. Provided that what the grantee is insisting on is not unreasonable in the context of the grant, the question is "can the right of way be substantially and practically exercised as conveniently as before?".

Applying these principles in the B&Q case, the court decided that the right granted could not be used as conveniently as before, and granted an injunction.

For details, see Legal update, Actionable interference with an easement (www.practicallaw.com/0-101-4497).

The B & Q case has subsequently been considered in Emmett v Sisson (Rev 1) [2014] EWCA Civ 64. In that case the Court of Appeal decided that:

  • On the proper construction of an express grant of the right of way, the dominant land enjoyed a right of access at any point or points along the entire length of the right of way.

  • Although such an extensive right was a relative luxury, it was neither unreasonable nor perverse of the dominant owner to insist on keeping this right of access. The servient owner had proposed to build a wall along the boundary allowing for a vehicular entrance at a given point but this would amount to an actionable interference with the right of way.

For more information, see Legal update, Right of way: construction of the grant and what would amount to interference (Court of Appeal) (www.practicallaw.com/1-556-5267).

Gates and locks

A gate does not necessarily amount to an interference with a right of way. Again, what needs to be considered is whether the gate in fact substantially interferes with the use of the easement granted. So, for example, the erection of several gates over a short route may be regarded as a substantial interference but one gate is less likely to be regarded as such.

Locking a gate or a door also may, or may not, amount to a substantial interference with a right of way.

A locked door has been held not to be a substantial interference where the occupiers of individual flats are given keys to the outer main door (Dawes v Adela Estates Ltd (1970) 216 EG 1405).

However, in similar circumstances, where the lock on the outer door prevented postal deliveries, it was held that it did amount to a substantial interference (Geoghegan v Henry [1922] 2 I R 1).

Parking interference

Parking also has to be considered in the light of the general principles to be applied. In Smith v Garrard [2004] EWCA Civ 1655, the Court of Appeal held that a restrictive covenant against car parking on any part of a roadway over which there were rights of way did not absolutely prohibit all parking. The covenant was a restriction against any parking that interfered with the exercise of the right of way and, on the facts of the case, the parking that was taking place did not interfere at all. For more information, see Legal update, Covenant against parking and the scope of a right of way (www.practicallaw.com/A46349).

Rights of light

To succeed in an action for interference with a right to light it is not enough to show that the light enjoyed is less than it was before. The claimant must show that the reduction in the light enjoyed amounts to a nuisance. Nuisance arises if there has been:

"as a matter of common sense, such a deprivation of light as to render the occupation of the [dominant land] uncomfortable in accordance with the ordinary ideas of mankind." (Colls v Home and Colonial Stores [1904] AC 179).

The more recent case of Carr-Saunders v Dick McNeil Associates Ltd [1986] 1 WLR 922 reinforced this view, deciding that a dominant owner is entitled to enough light to leave the property adequately lit for "all ordinary purposes for which the property may reasonably be expected to be used".

For more information on the remedies awarded for interference with a right to light, see Damages.

For more information on rights of light generally, see Practice note, Easements: rights of light (www.practicallaw.com/2-512-7432).

Rights to redevelop

Landlords often reserve rights confirming their ability to redevelop nearby property, including land over which rights have been expressly granted. These redevelopment clauses are particularly common in leases.

The interpretation of such redevelopment rights is a matter of construction. The courts have tended to construe redevelopment clauses restrictively, often also considering the principles of derogation from grant (www.practicallaw.com/3-107-6097) and quiet enjoyment (www.practicallaw.com/4-107-7100).

Although a redevelopment clause may mean that a tenant is unable to claim that the landlord has substantially interfered with an easement granted by the lease, the rights reserved will not generally be construed to allow the total destruction of the easement.

Pre-lease representations by the landlord and any exclusion clause in the lease may also be relevant. These may show what was in the contemplation of the parties at the time of the grant and therefore what will amount to a derogation from grant.

The following cases illustrate these principles:

For more information on acquiring rights of light by prescription, see Practice note, Easements: creation: Prescription (www.practicallaw.com/1-385-9229).

 

Avoiding the interference

There are various authorities on the extent to which interference with an existing easement can be neutralised by providing alternative means of exercising the right.

In Cardwell v Walker [2003] EWHC 3117 (Ch), the High Court held that where the party, whose land is subject to the easement (the servient owner), installs something which interferes with an easement, there is no actionable interference provided the servient owner gives the dominant owner an easy method of avoiding the interference.

However, on the facts of the Cardwell case, it was held that the defendant could not limit the sale of pre-paid tokens for electricity meters. This amounted to interference with the claimants' supply of electricity. Previously, subject only to payment, the claimants had enjoyed an unlimited access to electricity. For more information, see Legal update, Failure to supply tokens for electricity meter is interference with an easement (www.practicallaw.com/7-107-1984).

However, contrast the principle in Cardwell with that of the High Court in Heslop v Bishton and others [2009] EWHC 607 (Ch). Here, the High Court held that interference with an original right of way was actionable even thought an alternative, and equally convenient right of way, had been provided.

While a court is unlikely to grant an injunction in such cases, in Heslop, the existence of an alternative route to avoid the interference, did not prevent the court from granting a declaration confirming the existence of the original easement and awarding damages. For more information, see Legal update, Interference with a right of way - does an alternative route make a difference? (www.practicallaw.com/resource.do?item=:55435779)

 

Positive action to prevent interference occurring

In some cases, the servient owner may need to take positive action to prevent interference with an easement. So, for example, if a servient owner diverts a stream they must make sure the new watercourse is adequate to prevent water overflowing and interfering with any easement enjoyed by the dominant land.

This principle is illustrated in the case of Bybrook Barn Centre Ltd v Kent County Council, LSG 5 April, 2001. Although this case dealt with a private nuisance to neighbouring land, the principle is equally applicable to causing flooding that interferes with an easement.

In Bybrook, the Court of Appeal found a highway authority liable in nuisance for damage caused to neighbouring property by flooding. The flooding was caused by a culvert that became inadequate to deal with an increased water flow. Once the highway authority became aware that the culvert was inadequate, it had a duty to enlarge it. There had been some relatively minor flooding in the past and the highway authority should have foreseen the possibility of a nuisance from further flooding when the water flow increased. From that time, the highway authority was under a duty to take reasonable steps to abate the nuisance. For more information, see Legal update, Local authority liable in nuisance for flooding (www.practicallaw.com/2-101-3369).

 

Statutory rights to interfere with easements

In certain situations, statutory provisions allow interference with an easement to occur so that no private nuisance arises.

Under section 237 of the TCPA 1990, a local authority has power to override easements and other rights restricting the execution of works on land where both of the following apply:

  • The local authority has acquired or appropriated the land for planning purposes.

  • The works are in accordance with a planning permission.

The power applies to works carried out by the local authority or by a person deriving title under them, which includes any successor in title (section 336(8), TCPA 1990).

Section 237 of the TCPA 1990 used to allow easements and other rights affecting land acquired by a local planning authority to be overridden only during construction works to that land but not during the subsequent use of the land. This was seen as a serious threat to the effectiveness of regeneration schemes.

Section 194(1) and Schedule 9 to the PA 2008 amend section 237 of the TCPA 1990 so that, in England, easements and other rights will be overridden during the subsequent use of the land, as well as during the erection, construction or carrying out of maintenance of any building or work on the land. Amendments have also been brought into force for equivalent provisions in the Local Government, Planning and Land Act 1980 and the Regional Development Agencies Act 1998.

Compensation is payable in the event of interference with any easement (section 237(5), TCPA 1990).

 

Remedies

The remedies for interference with an easement include:

The first three remedies (declarations, injunctions and damages) are available by court order and can be granted singularly or in any combination. Abatement is a self-help remedy and should be exercised cautiously.

Declarations

Quite often, all a claimant wants, having gone to the trouble of issuing proceedings, is a declaration by the court confirming the existence, and defining the extent, of the easement. Although damages may also be sought arising from the interference, a claimant needs certainty so that it is confident in its future use of the easement.

Declarations are a discretionary remedy and are viewed by the courts as a useful way of confirming the rights and duties of the respective parties (often without the need for penalising a transgressing party by way of injunction or damages).

It is also possible to obtain a negative declaration that a proposed action, such as the development of land subject to an easement, will not amount to an interference. In Well Barn Shoot Ltd v Shackleton [2003] EWCA Civ 02, the Court of Appeal upheld the grant of a negative declaration that a proposed development would not cause substantial interference with the claimant's shooting rights. For more information, see Legal update, Developing land subject to sporting rights (Court of Appeal) (www.practicallaw.com/6-107-1593).

A declaration by the court is binding on the parties to the proceedings and their successors in title (unlike an injunction which only binds the parties). As a result, all parties with an interest in the proceedings should be joined in the action. A court will sometimes make an order to join in other parties if it thinks they will be affected by its decision.

However, it is not a contempt of court to fail to comply with or ignore a declaration. If that happens, the injured party should go back to the court to seek an injunction to enforce the declaration. It is, therefore, often prudent to ask the court to grant liberty to apply for an interim injunction in the event that the declaration is ignored (see Injunctions).

The form the declaration takes is very important. It should clearly set out the scope of the easement and avoid any ambiguity that may lead to future dispute. If the route of a right of way or pipeline is confirmed, it should be supported by a properly drawn up plan.

It is also important to keep a proper record of the decision with other deeds relating to the property as court orders are not kept by the courts indefinitely. The declaration may necessitate either: .

Injunctions

Injunctions (www.practicallaw.com/6-107-6265) are equitable remedies, which may be awarded at the discretion of the court. An injunction is only binding on the parties to the proceedings and not on their successors in title, but breaching an injunction is a contempt of court. An injunction will not normally be granted where damages would be an adequate remedy for the claimant.

Seeking an injunction may be barred by the doctrine of laches (www.practicallaw.com/3-383-9179) if the claim has not been brought in a timely manner. However, delay alone is not enough to prevent a claimant obtaining an injunction. The consequence of the delay must be that it would be unfair for the court to grant an injunction, usually because the defendant has changed its position to its detriment because of the delay.

There are three types of injunctions:

  • Mandatory, which orders the defendant to do something.

  • Prohibitory, which orders the defendant to refrain from doing something.

  • Quia timet, which orders the defendant to act to prevent future harm occurring.

An injunction may be awarded only where damages would not adequately compensate the claimant. Injunctions may be interim (interlocutory) or final (perpetual), and can be awarded unconditionally or subject to such conditions as the court thinks fit (section 37, Senior Courts Act 1981).

An injunction is a very effective remedy and, if granted, will effectively prohibit any further interference with the easement as established (or prevent trespass if no easement is found to exist). However, an injunction is a rather draconian remedy and, as a result, the courts do not grant injunctions lightly.

However, in the case of Kettel and others v Bloomfold Ltd [2012] EWHC 1422 (Ch) an injunction was granted against a landlord who had sought to redevelop its land and in the process take away, and replace with different slots, eight car parking spaces. The High Court held that the rights granted to the tenants to park cars were easements and that the landlord would be interfering with those easements if it proceeded as it had planned. For more information, see legal update, Flat tenants granted injunction against landlord that developed in their designated car parking spaces (High Court) (www.practicallaw.com/4-519-9908)

For more information on injunctions see Practice note, Remedies: equitable remedies: Injunctions (www.practicallaw.com/3-107-4866).

Damages

Common law damages in tort

Damages in respect of disputes concerning easements are calculated on a tortious measure of damages (www.practicallaw.com/4-107-7398) basis. Damages for trespass or nuisance are assessed to compensate the claimant for the loss actually suffered as a result of the defendant's actions. If the claimant has suffered no loss, the most the claimant can recover is nominal damages (see Practice note, Remedies: damages and agreed remedies: Nominal damages (www.practicallaw.com/8-107-4864))

Not all losses that flow from a tort are recoverable. Damages for liability under tort are restricted by certain principles. For example, sometimes:

  • Losses will be viewed as too remote to be recoverable.

  • There will not be a sufficiently strong causal connection between the breach and the loss.

  • The claimant may have failed to mitigate its loss.

  • The claimant may have suffered loss partly as a result of its own fault.

For more information on how remoteness, causation, mitigation and contributory negligence may affect a claim for damages in tort, see Practice note, Remedies: damages and agreed remedies: Rules for recovery of damages (www.practicallaw.com/8-107-4864).

Generally, when an easement has been interfered with, or wrongly asserted, the damages will arise from:

The case of Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd, [2007] EWHC 212 (Ch) provides a useful summary of the principles to be used when assessing damages for breach of a right to light. The court awarded the claimant one-third of the likely development profit, reduced to reflect the minor nature of the breach. However, the final figure was still substantially more than would have been awarded simply for loss of amenity. For more information, see Legal update, Assessment of damages for breach of right to light (www.practicallaw.com/5-224-6998).

Damages in lieu of an injunction

Damages can be awarded in lieu of an injunction but the circumstances in which this is appropriate are rare. Generally, if an injunction is fitting in the circumstances, it should, in most cases, be granted.

Shelfer v City of London Electric Lighting Company (CA) [1895] 1 Ch 287 first established that the judicial discretion to award damages in lieu of an injunction should not be exercised to deprive a claimant of its right to an injunction "except under very exceptional circumstances".

Damages in lieu of an injunction were considered in detail in the case of Regan v Paul Properties Ltd and others [2006] EWCA Civ 1319. In Regan, the Court of Appeal was concerned that the principles laid down in Shelfer were being misinterpreted by the lower courts. The judgment took great care to explain the Shelfer decision and to examine subsequent cases to show that it was still good law over one hundred years later. For more information on the principles in Shelfer and the decision in Regan see Legal update, Injunction granted to protect right to light (www.practicallaw.com/5-205-6083).

The principles in Shelfer were applied in HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch), where the High Court awarded an injunction against a developer who infringed the rights of light to a neighbouring commercial property, despite the offending development having been completed. For more information, see Legal update, Rights of light: injunction granted against completed building (www.practicallaw.com/5-503-5073).

Abatement

There is a general and limited common law principle that a party is entitled to enter onto another's land in order to put an end to an interference. This is known as abatement, and it comprises of both:

  • A right to enter onto the servient land in certain circumstances.

  • A remedy of putting right the interference.

Abatement can only be used where a cause of action exists and, in the case of easements, this lies in nuisance. So, for example, abatement may be used to lawfully remove an obstruction that is blocking a right of way.

The limitations on abatement were discussed in Burton v Winters [1993] 1 WLR 1077 which are:

  • Abatement is only appropriate in simple cases or where an immediate remedy is needed.

  • If there is more than one way to abate the nuisance, the least "mischievous" method should be used as the party abating a nuisance must act in the most reasonable manner available.

  • The party abating the nuisance must not cause any unnecessary damage.

  • A claimant cannot resort to abatement if a court has already refused a mandatory injunction.

  • Abatement must be exercised promptly.

  • Unless it is an emergency, or there is no need to enter onto someone else's land, the party abating the nuisance should give notice to the party causing the nuisance.

If a party enters property to abate a nuisance, then that party is not precluded from seeking other remedies of damages and/or a declaration in court. If the nuisance recommences, an injunction may also be sought.

 
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