Rights of way and increased use – how far can you go?
Rights of way across land are invariably granted with some form of restriction as to how they can be used. Most landowners who grant rights want to retain some form of control over those crossing their land, but what happens when the right of way is being used either by more users or for a different purpose?
What is excessive use?
The assessment of whether the use of a right of way is excessive or not is based on the principle that the use must not exceed that which was originally granted. This means that when a right of way has been granted expressly in a deed, then the wording of that grant should be checked carefully. Most cases around excessive use stem from some change in the land which benefits from the right of way, typically when land is developed, resulting in far greater use of the right than was originally contemplated.
Even when a right of way has been granted in broad terms, for example “at all times and for all purposes” this does not always mean that it can be used when the nature of the surrounding land changes. A good example of this in relation to a change in the use of land was in the case of Jelbert v Davis . A right of way for all purposes was granted to access fields, but when a caravan site was subsequently built on the land, the use of the accessway was regarded as excessive.
The most recent case looking at increased use was considered by the High Court in the case of Mills v Estate of Partridge and another  where a right of way originally granted to access agricultural land was being used to access a greatly expanded plant nursery and tearoom.
Facts of the case
The defendants (P) owned a nursery and a field which were both accessed over a track belong to the claimant (M). There was a right of way over the track which gave P the ability “to pass and repass at all times and for all purposes in connection with the use of the land conveyed as agricultural land only…”. The field also had a covenant restricting its use to agricultural land.
Over a period of 40 years, P’s business expanded from fields growing bedding plants and vegetables to a shop and a tearoom with various outbuildings and stables. Visitor numbers increased as the tearoom had a premises and entertainment licence and the plant nursery included a garden centre selling a variety of items. The field was being used mainly for parking and the storage of firewood so inevitably, the use of the track increased substantially.
M applied to the court for a declaration and injunctive relief on the basis that P’s use of the track constituted trespass - P’s expansion of its business meant that the nursery and field were no longer being used as agricultural land. P argued that as parts of the land were being used for agricultural purposes and the tearoom was ancillary to the nursery, the overall use of the land was still agricultural.
The High Court agreed with M and held that as P’s current use of the land was largely non-agricultural, P did not have the benefit of a right of way over the track for the purpose of parking in the field or to access the nursery to visit the tearoom. The court’s view was that the tearoom was a separate entity run independently from the nursery – it was not ancillary despite being on the same site. P’s use of the track had exceeded the scope of the original grant of the right of way, and M was entitled to an injunction to prevent this from continuing. The court decided that the use of the field for parking and the sale of firewood, was also in breach of the restrictive covenant to use the land for agricultural purposes only.
The main learning point has to be that it is imperative to check the exact terms of a right of way if you are intending to develop or change the use of the land which has the benefit of this right. This will require looking at the purpose, as well as the nature and amount of use anticipated at the time the right of way was originally granted. Agricultural land is frequently accessed via rights of way over a farm track and whilst this may be acceptable when the land is used as fields, this may not be the case if the fields are subsequently developed for housing or when a business is expanded and diversifies.