In Bucknell v Alchemy Estates (Holywell) Ltd [2023] EWHC 683 (Ch), the Court was asked to decide whether a right of way “for all times and for all purposes” was completely unlimited, or whether the exercise of the right of way could be limited with reference to intention at the time of grant, and nuisance.
The facts of the case concerned a right of way that had been created by express grant in 1972. Both the servient land (the land subject to the right of way) and the dominant land (the land with the benefit of the right of way over the servient land) were sold to new owners after the right of way was granted. The new owner of the dominant land started construction work to build two new dwelling houses on his plot. This meant that during construction, construction vehicles used the right of way. After construction, the residents of the two new dwellings were also to use the right of way to access their homes.
The owner of the servient land argued to the High Court that:
- the right of way was not being used in the manner intended in the 1972 conveyance, namely it was not intended for construction vehicles and for more than one dwelling house; and
- the use was excessive and a nuisance.
The High Court held that the right of way, regardless of its intended purpose in the 1972 conveyance, was permitted to be used “at all times and for all purposes”. Therefore, the dominant landowner was correct that he could use the accessway for construction vehicles and for additional dwellings. The servient owner bought the land subject to the burden of the right of way over his land and that right must prevail. The only two exceptions to this were:
- the right is restricted to what the land can physically accommodate; and
- excessive use. “Excessive” is defined narrowly and on a case-by-case basis.
On the facts of this case, neither two instances were apparent. The land could accommodate increased usage, and this wasn’t seen as unfairly excessive on the servient landowner, when the previous use of the accessway was for one private dwelling and agricultural use.
The moral to be learnt from this case is that “for all times and for all purposes” does mean “for all times and for all purposes” (as long as the dominant landowner is not being unreasonably excessive). Therefore, any potential buyers who are to be burdened by an existing right over their land should be cautious to the phrasing of that right of way.
