Thompson v Bee & Anor

Thompson v Bee & Anor

The right of way over the Track is not limited to agricultural purposes but extends to all purposes connected with the Garth, as per the express terms of the will and the assents construed together. However, the proposed use for access to three residences would constitute excessive user and is not permitted, as it would unreasonably interfere with the servient owners' rights.

Parties
Appellant/defendant: Stephen Thompson; Respondents/claimants: Jane Bee & Another
Jurisdiction
England and Wales
Judgment Date
20 November 2009
Procedural Posture
Civil Appeal / Appeal From Chancery Division, Judgment of HHJ Roger Kaye QC
Outcome
Appeal allowed in part, dismissed in part
Legal Topics
Right of Way, Implied Easements, Construction of Wills, Excessive User, Nuisance
Property Law Easements Wills and Probate Right of Way Implied Easements Construction of Wills Excessive User Nuisance

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Parties

Stephen Thompson

Appellant/defendant

Jane Bee & Another

Respondents/claimants

Procedural Posture

Civil Appeal / Appeal From Chancery Division, Judgment of HHJ Roger Kaye QC

Legal Issues

  1. 1 Whether the right of way over the Track is limited to agricultural purposes or extends to all purposes connected with the Garth
  2. 2 Whether the proposed residential development constitutes excessive use of the right of way amounting to a nuisance

Ratio Decidendi

The right of way over the Track is not limited to agricultural purposes but extends to all purposes connected with the Garth, as per the express terms of the will and the assents construed together. However, the proposed use for access to three residences would constitute excessive user and is not permitted, as it would unreasonably interfere with the servient owners' rights.

Court Disposition

Appeal allowed in part, dismissed in part

Orders

  • Declaration substituted: the defendant's right of way to the Garth does not permit user for the three residences proposed to be erected on the Garth.
  • Injunction varied: the defendant is prohibited from using the right of way for the purposes of access to and from three residences proposed to be built on the Garth.