In a previous article, I briefly outlined the implications that the newly ‘unlocked’ grey belt may have for access rights.
I touched upon potential consequences in a scenario whereby a newly unlocked site may already have a pre-existing right of way servicing the area.
In this situation, one concern for a landowner of the burdened land (being the land that physically accommodates the right of way), is intensification.
This article considers the intensification of an express (recorded) right of way.
What is intensification of a right of way?
Intensification of a right of way occurs when the right of way is suddenly used for purposes which exceed the original intended use. This amplified use could manifest as:
- More frequent use of the access – i.e. from use once a week to a daily use.
- Increased number of users – i.e. use of the access by the occupiers of one residential property increased to use by the occupants of four residential properties
- Change in type of user – such as change from cars to agricultural machinery, or from a van to articulated vehicles.
- A physical widening of the access or metalling of the surface – a physical expansion.
As the name suggests, intensification requires a use greater than that which the right was initially enjoyed.
Therefore, any development of ‘grey belt’ land – so land previously devoid of any substantial use will, necessarily, see a consequential increase in the use of the pre-existing right.
When can you take action against intensification?
Unfortunately, the answer as to what can be done about intensification of a right is a typical ‘lawyers answer’, which is that it depends on the case specific facts. There is no ‘one rule fits all’.
However, for intensification to be actionable it must be excessive. An increased use alone will not be sufficient to amount to conduct which is actionable.
The Court has battled with what constitutes ‘excessive’ and the pervasive guiding finding appears to be that:
- There has to have been a radical alteration in the character of the land exercising the benefit of the right. This goes beyond a change of use of the area
- The change in character has to result in a substantial burden being applied to the right of way.
In situations whereby a new grey belt site is being developed, one would imagine that any increased use could be excessive on the basis that the new development site would be drastically different to that which it once was or was intended to be, or that there is a change in character of the area.
If both a fundamental change in character of the land use combined with an increased burden can be established, then the user of the right of way could be prevented (temporarily or permanently) from exercising this amplified use.
What can you do?
If the potential for an increased user is anticipated and addressed in the drafting of the express right of way – a landowner of the burdened land may simply accept the intensification. It may not come as a surprise or concern because the recorded right already allows for a greater use of that which has been enjoyed – the user simply has not had cause to use it for such a purpose previously. The increased use may have been expected and is uncontroversial.
Alternatively, if the increased used is not expected,
- If the landowner of the burdened land is not negatively impacted upon by this increased use (for example the right may pass along the edge of a field and not impact on the day-to-day use of the burdened land in any event), then there is an opportunity to address the terms of the right of way and agree the intensified use with the user.
This is beneficial to the owner of the burdened land as it introduces the ability to, perhaps, seek monetary recompense for the new use, introduce maintenance obligations and protect against further, future, intensification.
It need not be a point of contention – it may be viewed by a landowner as an opportunity.
- If the intensification does impact the landowner of the burdened land, action may be necessary.
This could occur if the increased use causes a nuisance, restricts the landowner’s use of their own land, or if they are simply concerned that the agreed position is being breached.
If attempts to resolve the issue through dialogue with the user have been exhausted or ignored, the landowner may consider pursuing an injunction through the Courts to halt the intensified use.
As noted above, for an injunction to succeed then the increased use must be excessive. It is not enough for the use simply to be intensified – it must be intensified to such an extent that it exceeds what would be reasonable for that particular circumstance. It must be intolerable for it to become actionable.
Examples
To demonstrate how matters vary on a case by case basis.
Jelbert v Davis
The case of Jelbert v Davis touched upon a situation whereby a plot of land used for agricultural purposes had the benefit of an express right of way for all purposes.
This appears to be broadly drafted – any use is allowed.
How then could anyone be deemed to intensify a use which is so broad and seemingly has no limitations on use or user?
The owner of the agricultural land wanted to use the area as a caravan site for 200 caravans.
It was decided, by the Court of Appeal that, although the drafting allowed for any use (and so the use by caravans would be permitted) it should not be exercised in such a way so as to interfere by the use of the access by others.
It was held that use by so many caravans would interfere and, as such, the use would be excessive.
White v Grand Hotel (Eastbourne) Ltd
By contrast, the case of White v Grand Hotel (Eastbourne) Ltd determined that the intensification of an access which arose as a result of a single residential house being changed into a hotel was not an excessive increase and was allowed, even though there would be increased frequency and volume of user.
Landowners should be aware of any express rights that exist and know the limitations imposed on the user. If they are aware of any express rights of way which service an area of grey belt, then they should be alive to the possibility of intensification and act appropriately should it occur.
For further information and advice, please contact Catherine Gregson today.