Rights of way and what constitutes substantial interference

25 May 2021

Nyree Applegarth, Head of Property Disputes, looks at a topic of many a neighbourly dispute – rights of way – and when interference becomes substantial.

We are often asked to advise clients on their rights of way, most often in circumstances where a neighbour might have blocked the right-of-way and upset the client. One of the first things that we always have to consider is the extent of the rights that the client has and then the extent of the interference.

For example, where a party might have a clear right-of-way over another party’s land and complains that a gate has now been put across the route which makes their access more difficult. The client might not like the new gate, but it does not necessarily follow that the client can take legal action to have the gate removed. The important consideration is always whether the interference is a substantial interference. Often we have to advise that, although it is less convenient to have to go through the gate, there is nothing that the complainant can do in legal terms.

The subject of substantial interference has been looked at recently in the case of Bockenfield Aerodrome v Clarehugh.

In that case the operator of the airfield complained that trees on neighbouring land were denying pilots visual clues and restricting the length of the runways available for use by them.

They said this was a substantial interference with the easement which granted the owner of the airfield an unrestricted right to use at a safe height, the air space… for the passage of aircraft in circuit arriving or leaving the property. The easement had been granted in a transfer of the airfield in 1993 at a time when it was surrounded by open farmland.

There were no impediments to prevent aircraft from taking off or landing at low heights. However, the adjoining landowners had created a woodland burial site on their land and argued that the trees that they had planted were merely doing what trees do, namely growing upwards.

They argued that this was not something that they could be required to alter because the character of an easement is such that it requires nothing more than sufferance and cannot impose a positive burden on the owner of the servient land.

The judge agreed that at their current height the trees were substantially interfering with the airfields’ rights. They considered an analogy if a servient owner had planted a hedge along a right-of-way and then the hedge had grown such that it narrowed the right-of-way to the point where it could not be used as it was intended.

In those circumstances rectification of the harm would be achieved by the hedge having to be trimmed back. They drew parallels with the trees and opined that the owners of the woodland had interfered with the easement by allowing the trees to grow tall into the airspace. They ordered the neighbour to remove or reduce the height of the trees to enable aircraft to have at least 20 feet of space below them on the boundary.

Separate to the substantial interference argument, the complainant also sought to argue that the woodland burial site owners had derogated from the grant of the original right because the trees disrupted airflow and affected aircraft stability. In short, they were complaining that the trees affected the airfield operator’s use of its own land.

The judge was not satisfied, however, that the trees were making the runways and substantially less fit for use by aircraft and therefore dismissed the complainant’s claim in relation to derogation from grant.

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