It is a familiar story in Cornwall and Devon. The traditional barns in a farmyard are sold for conversion, or a field is given over to holiday lodges. Planning permission is granted. And then someone asks whether the old farm track can lawfully carry the new traffic.
Three ways a right of way comes about
The answer depends on how the right was created, so that is always the first question.
A right granted in a deed. If the right was expressly granted, its extent depends on the words used, read in the light of the circumstances when it was granted. A right “at all times and for all purposes” is wide, and may well extend to access for new homes or holiday lets. A right “for agricultural purposes”, or one tied to the use of the land as a farm, will not extend to a holiday business.
A right implied when the land was divided. When a farm is split up, the law can imply rights that the deeds left out. But an implied right is generally shaped by the use being made of the land at the time of the division, so it may not stretch to a later and very different use.
A right acquired by long use. A right acquired through twenty years’ use is measured by the use that established it. More traffic of the same kind does not usually exceed it.
Planning permission is not a right of way
A planning permission tells you that the council has no objection to a development in planning terms. It says nothing about private rights over a neighbour’s land. A council may grant consent for a conversion served by a track that the developer has no right to use for that purpose — and the neighbour can still go to court.
If you are buying or converting
- Check the title to the property and to the track: who owns the route, what right exists, and what it covers.
- Walk the route. Does the right on paper follow the track on the ground? Is it wide enough for the vehicles that will use it?
- Look for maintenance obligations and contributions.
- If there is doubt, negotiate a new or varied right with the landowner before you commit. It is almost always cheaper before than after.
- Title indemnity insurance can sometimes cover a doubtful access, but policies are usually void if the landowner has already been approached, so take advice before doing either.
If your land carries the right of way
- Take advice as soon as you learn of the proposals, and if you object, object in writing.
- Do not stand by while building work goes ahead: the court may refuse an injunction to someone who delayed, and award damages instead.
- Consider what would make the new use acceptable — a speed limit, passing places, a contribution to repairs, a payment for a wider right. Many of these disputes end in a negotiated deed rather than a judgment.
Settling it
The best outcome is usually a clear written agreement: a varied or new grant setting out the route, the permitted use and the maintenance arrangements, registered against both titles. It protects everyone when the properties are next sold — which, in this part of the world, is often when the question comes up again.
For more, see rights of way and easements, or get in touch.