Resolving Rights of Way and Easement Disputes in Cornwall and Devon

What an easement is

An easement is a right to use or do something on land you do not own, for the benefit of land you do. The right belongs to the land rather than to a person, so it passes with the property when it is sold — and so does the burden on the land it crosses.

The most common easement is a private right of way: on foot, with vehicles, or with farm machinery and livestock. Easements also cover drains and sewage pipes, water supplies from springs and boreholes, cables, and rights of support and light. A private right of way is not the same as a public footpath or bridleway, which anyone may use and which is recorded on the council’s definitive map — though the same track can carry both.

How rights of way arise

There are three main routes, and working out which applies is usually the first job in any dispute.

• Granted in a deed. Most rights are written into a conveyance or transfer. The words matter enormously: a right “at all times and for all purposes” is very different from one “on foot only” or “for agricultural purposes”, and the route shown on an old plan may not be the route now used.
• Implied when land is divided. When a farm is split up — a field sold separately, a farmhouse sold away from its land, a barn sold for conversion — the law can imply rights that the deeds left out, such as the use of a track that had always served the part sold. These rules are technical, and the answer often depends on what was on the ground on the day of the sale.
• Acquired by long use. A right can be acquired by “prescription”: twenty years’ use as of right — without force, without secrecy and without permission. Use with permission, however long it lasts, gives no right at all. The extent of the right is measured by the use: a footpath does not become a lorry route.

Rights established by long use can be registered at HM Land Registry. If the landowner objects and the objection cannot be resolved, the application is referred to the First-tier Tribunal (Property Chamber).

Blocked access and obstruction

Gates, locks, parked vehicles, boulders, new fences, a narrowed track, a building across the route: obstruction is the most urgent kind of easement dispute, especially where it cuts off a home, a field or livestock.

Not every interference is unlawful. The usual test is whether it substantially interferes with the reasonable use of the right. A landowner can often put a gate across a right of way, for example, provided it does not make the right substantially less convenient to use — and if the gate is locked, those entitled to use the way will usually need a key or the code. A locked gate with no key, a turning space blocked, or a track narrowed below the width the vehicles that have always used it need, are different matters.

Where access is being prevented, the County Court can grant an injunction ordering the obstruction to be removed — in urgent cases, on an interim basis within days. The law allows only limited self-help, and getting it wrong can put you in the wrong, so take advice before removing anything.

More traffic: barn conversions, holiday lets and new homes

Across Cornwall and Devon, old rights of way over farm tracks now serve converted barns, holiday cottages, glamping pitches and new houses. Whether an old right can carry the new traffic is a common question in property law.

The answer depends on how the right came about. A right granted in a deed is interpreted according to its words, read in the light of the circumstances when it was granted: a right “for all purposes” may well extend to a new use, while a right “for agricultural purposes” will not cover access to a holiday let. A right acquired by long use is more limited. More traffic alone will not usually exceed it, but a radical change in the character of the property it serves, which substantially increases the burden on the land crossed, can take the new use outside the right. That two-part test comes from the Court of Appeal’s decision in McAdams Homes Ltd v Robinson in 2004: mere intensification of an existing use is not enough, and both limbs must be satisfied before the right is lost.

Two points can be overlooked. First, planning permission is not a right of way: a council can approve a conversion without deciding whether its access is lawful. Second, timing can be crucial. Anyone buying or converting should check the access before committing; anyone objecting should do so promptly, because a court may refuse an injunction to someone who stood by while the development was built, and award damages instead.

Drains, water pipes, septic tanks and services

Many rural properties in Cornwall and Devon are not on mains drainage or mains water. A septic tank or treatment plant may drain into a neighbour’s field; a spring or borehole may supply several houses through pipes that cross other people’s land. These arrangements are often decades old, informal or poorly documented — and they turn into disputes when a property is sold, a field changes hands, or something needs digging up.

The questions are the same as for rights of way: does a right exist, what does it cover, and who may enter to inspect, repair or replace? Upgrading an old septic tank to meet the Environment Agency’s rules for small sewage discharges can mean new pipework or a new discharge point, and a question whether the existing right extends to it. Electricity and telecoms equipment is usually covered by separate wayleave agreements or statutory rights, which raise different issues.

Shared tracks: repairs, width and parking

Where several properties share a track, disputes tend to arise over who repairs it, how wide it must be kept, and whether anyone may park on it. Start with the deeds, which may set out repairing obligations or contributions. Where they are silent, the general rule is that the owner of the land crossed has no duty to maintain the track for others, while those entitled to use it may carry out reasonable repairs at their own expense. Informal cost-sharing works well until someone sells, so it is worth putting in writing.

Whether a right of way includes a right to park, turn or unload depends on the grant and the circumstances.

Moving, varying or ending a right

A right of way can be released, varied or re-routed by agreement — and a new route that suits both sides, properly recorded and registered, is often the best outcome of a dispute. A landowner cannot generally move a private right of way on their own initiative unless the deed allows it. And a right is rarely lost simply by not being used: abandonment needs clear evidence of an intention to give the right up for good.

How Laurence can help

• Reading the deeds and title history to establish what rights exist and what they allow
• Gathering evidence of long use from witnesses, photographs and aerial images
• Urgent injunction applications where access has been blocked
• Advising buyers, sellers and developers on access before they commit
• Negotiating re-routing, maintenance and access agreements
• Applications to HM Land Registry, and proceedings in the First-tier Tribunal
• Representing you at mediation, and bringing or defending claims in the County Court