Expert Advice on Private Rights of Way

Rights of way continue to exercise legal minds and cause problems for landowners and users alike. Unfortunately, private rights of way seem to cause more difficulties than their public equivalents.

 

A recently decided case produced a very unusual result. The land in question was owned by a company called Ashdale Land & Property Company Limited and it sold a field to a Mr Cash who was described in the evidence as an ethnic gypsy. Access to the field was obtained over a lane owned by Ashdale and it gave Mr Cash a right to use it for agricultural purposes. However, Mr Cash split the field up into plots, laid them with hardcore and sold the plots to others who brought on their caravans. The might of the law was then turned on those occupants but with very little effect! The local authority took enforcement proceedings and followed this up by an Injunction. Ashdale also took out an Injunction to prevent unauthorised use of the right of way. None of these measures had any effect on the occupants and, in desperation, Ashdale blocked the access road. However this just caused another problem of a different nature because people then parked their vehicles on the road obstructing other users.

 

In the end, Ashdale applied for an Injunction preventing use of the road altogether as well as a Declaration from the Court that it was entitled to obstruct the access for all use. Ashdale’s barrister argued that although there was a legitimate right to use the access for agricultural purposes, that right could not be exercised in any event because the site was not capable of agricultural use! The Court agreed and gave Ashdale its Declaration and Injunction. On the face of it, it was a draconian remedy but, on the other hand, what else could Ashdale or the Court do?

 

In many respects, lawyers feed off the regulatory framework which encompasses all businesses and none more so than the agricultural industry. The Campaign for the Farmed Environment (CFE) depends on its success for the voluntary action taken by farmers in the wake of the dissolution of set aside. Farmers have been reminded that, whilst the CFE has been successful to date, the industry must be vigilant to ensure that it encourages wide cooperation in its efforts to protect and enhance the environment. A failure to be proactive may well have the undesirable result that more regulations are imposed in order to achieve the same end and those promoting the CFE are rightly concerned to ensure that their efforts are successful in order to keep the regulators (and lawyers) at bay.