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When a right of way exists across land and the right of way is obstructed but a new one created, is the original right of way ‘diverted’ or does it remain?

This was the question before the court recently. A man possessed a property on land which had been made into a residential estate. Between the land he owned and an adjacent property there was a gap (called ‘the passageway’), which remained in the ownership of the original land owners.

A right of way over the passageway was given to the owners of properties on the estate. However, the first property owner built a gateway on land next to the passageway, with the effect that, for one of his neighbours, access to the passageway was restricted to a gap of 16 inches. The neighbour claimed that he should be allowed to cross the property owner’s land to access the passageway as a result. The property owner argued that access to the passageway was possible by stepping onto a small piece of his land and that there was no interference with the other man’s right of way that warranted action being brought. By way of compensation, he had offered his neighbour the right to cross his land for ten years.

The court agreed that where a right of way had been obstructed, the existence of an equally convenient right of way meant that the remedy which could be sought for the obstruction was modified. However, the assertion that one right of way could be replaced by another (thus effectively extinguishing the first right of way) was not accepted. The property owner could not simply extinguish the existing right of way. If a new one was created, that was in addition to the existing one. The provision of a new right of way would clearly affect the claim relating to the obstruction of the old one, but did not extinguish it. The offer of a ten-year licence to cross the property owner’s land was not sufficient – it left the neighbour’s position uncertain and a prospective buyer of his property might be unwilling to accept that position.

Says Brian Regler, “In practice, rights of way can be very difficult indeed to vary and, if you wish to do so, this must be approached with care. If you have a right of way over land and this has been interfered with by the landowner, contact us for advice.”