Q&As

Two parties (A and B) have rights of way over a drive the centre point of which is the boundary between their two properties. Can A build on its side of the drive if that new building encroaches on the right of way, but still affords B sufficient access over the side of the drive owned by A? Is there a de minimis rule or is the mere fact of building an interference with the right of way?

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Produced in partnership with Christopher Snell of New Square Chambers
Published on LexisPSL on 30/08/2017

The following Property Q&A produced in partnership with Christopher Snell of New Square Chambers provides comprehensive and up to date legal information covering:

  • Two parties (A and B) have rights of way over a drive the centre point of which is the boundary between their two properties. Can A build on its side of the drive if that new building encroaches on the right of way, but still affords B sufficient access over the side of the drive owned by A? Is there a de minimis rule or is the mere fact of building an interference with the right of way?
  • Interference with an easement
  • Interference with rights of way
  • Substantial interference

Interference with an easement

Interference with an easement, such as a right of way, gives rise to an action for private nuisance. Where a person claims that an easement to which they are entitled has been interfered with, and if they are to found a claim in private nuisance, they must establish the following:

  1. that they are entitled to the benefit of the easement claimed

  2. the nature, extent and scope of the easement claimed

  3. that the interference with the easement as defined is of a substantial nature. Interference need not amount to a total destruction of the easement, but a trivial impact on the use of the easement will not give rise to a cause of action

It follows from what is set out at in the third bullet point above, that not every interference with an easement is actionable.

For further information, we refer you to Practice Note: Easements—actionable inter

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