Case Update: Hemel Ltd -v- Moy Furniture Ltd

Carson McDowell LLP acted for the successful plaintiff in a court action relating to the extent of a right of way acquired by prescription (long use).

Background

The plaintiff is the owner of property in Moy that includes a laneway. Part of that laneway had been used to access property that included a dwelling and outbuildings. There was no documented right of way over the laneway to the dwelling, but the former owner of the dwelling used it from the 1950s until he passed away in 2013.

The dwelling was purchased by the defendant, a furniture company. It then applied for outline planning permission for the construction of a 7,394 sq ft warehouse facility for its furniture business. The proposed development included a lorry parking area and approximately 10 carparking spaces, all of which was to be accessed via the laneway.

The plaintiff objected to the proposed development. Whilst it was accepted that the dwelling benefitted from a right of way, the issue for the court to determine was whether that right of way could be used for a commercial purpose—specifically to access a proposed warehouse development.

Prescriptive Rights – The Law

The extent of a right of way established by prescription (or long use) is determined by the actual use of the right.

If there is a radical change in the change in the use of property that benefits from a right of way, that results in a substantial increase in the burden on the land that is subject to that right, that will be an excessive use of the right of way and not permitted.

The evidence

The former owner of the dwelling was a Mr Watson. The court heard witness evidence as to his use of his property and the laneway since the 1960s. Both parties agreed that Mr Watson lived at the dwelling.

The defendant relied on six witnesses, who described Mr Watson as having sold both turkeys and cars. One witness gave evidence of having purchased two cars from Mr Watson. Another told of buying a car from Mr Watson in the 1970s, with Mr Watson later changing the brakes and replacing the exhaust for him.

The defendant argued that the evidence established a commercial use and that the proposed warehouse was not a radical change in the character of the property.

The plaintiff’s evidence described Mr Watson as a man who had been in paid employment through his adult life, but who “sold the odd tractor” and enjoyed “tinkering at machinery”. The plaintiff also relied on evidence from a roads engineer, who opined on the likely number of daily journeys that a road servicing a warehouse would create.

The decision

Having heard the witness evidence, the Judge concluded:-

“I think it is fanciful to suggest that Mr Watson adopted a “commercial” user in respect of either the Property or, by extension, the laneway providing access to it. When one analyses it, there is sufficient evidence to suggest that he may have had a hobby fixing and/or selling cars (and indeed turkeys) but that is a far stretch from establishing a commercial user. The evidence I heard depicted a gentleman who enjoyed tinkering with machines and cars and, on occasion, may have sold them to people of his acquaintance. There was absolutely no evidence of him actively pursuing a commercial enterprise to give those words their natural meaning. What is

depicted is a hobby. The sale of a few cars over a 40-year period does not, in my view a business make. Objectively when one puts the evidence (even at its height) against the development of the site as proposed by the defendant I think it is quite clear that any reasonable observer would interpret that as a “radical change” in both the use of the Property and, correspondingly, the laneway.”

The court therefore found in favour of the plaintiff, concluding that the defendant enjoyed a right of access to and from a dwelling. That right could not be used to construct and then operate a warehouse.

A copy of the full Judgment can be read here.

Carson McDowell view

The law surrounding prescriptive rights can be difficult to navigate. The absence of any document expressly detailing the purposes for which a right of way can be exercised will inevitably to uncertainty.

When considering any proposed development, it is prudent to investigate whether the property rights are in place to implement it. The same can be said if you are concerned about the potential impact of a development by others.

If you would like any further information or advice, please contact Annie Convery from our Construction team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice.