Disputes about rights of way often arise between owners of neighbouring residential properties, but can also be an issue for property developers. In a recent case, a property company successfully applied for declaratory relief that current and likely future use of a roadway did not unreasonably interfere with its use by a farming couple who owned it.

The land had originally comprised one estate. It was sold in 1982 and split into two plots. The couple's plot was used as farmland and included the roadway, a single-track lane running for several hundred metres along the boundary of the plots. When the land was divided, the couple granted a right of way to users of the other plot, which then included six dwellings, although this increased over time.

In 2020, the other plot was sold to the property company. After the couple raised concerns about increased use of the roadway, the company sought declaratory relief with respect to its use. At issue was whether the current and likely future use of the roadway by occupiers of the other plot was lawful, and whether it amounted to an unreasonable interference with the couple's own use of the roadway. By the time the application was heard there were 29 dwellings on the other plot, with likely planning permission for a further eight.

The couple argued that the use of the roadway had become excessive, pointing out that they consistently used it, particularly during busy periods such as harvest time. However, the husband accepted that, at present, if a car pulled into one of the passing places a tractor could pass it without difficulty, acknowledging that his concern was more in respect of the potential increase in traffic.

The court considered evidence from users of the other plot, photographs and CCTV footage of the roadway, and expert evidence. It noted that evidence of unreasonable interference was required – it was not enough to claim that an increase in the number of dwellings must necessarily lead to increased use of the roadway and so to unreasonable interference. Both the couple and users of the other plot had an equal right of way over the roadway: they had to allow for each other's use, and some interference was inevitable.

The court concluded that neither the present use of the roadway nor the planned future use amounted to unreasonable interference. Granting the company declaratory relief, the court observed that it could not look to the future and that its judgment did not prevent the couple from bringing a further claim if the actual future use of the roadway led to unreasonable interference.