Perlman v Rayden & Anor [2004] EWHC 2192 (Ch) (07 October 2004)

Perlman v Rayden & Anor [2004] EWHC 2192 (Ch) (07 October 2004)

The defendants' rights of way did not extend to using the roadway for building works beyond repair and maintenance, nor to creating new projections or permanent structures over the roadway; the right of way permitted access to the new front door, but not the construction of a step or hardstanding over the planting area without the claimant's consent; use of the roadway for construction constituted trespass, entitling the claimant to damages but not to mandatory removal of all alterations; the claimant's right of access for repairs required a reasonable gap between properties, to be determined by the court.

Citation
[2004] EWHC 2192 (Ch)
Parties
Claimant: George Perlman; Defendant: Paul Rayden; Defendant: Claire Rayden
Jurisdiction
England and Wales
Judgment Date
07 October 2004
Procedural Posture
Chancery Division Property Dispute / Post Trial Judgment
Outcome
Claimant succeeds in part; damages awarded for trespass; declaratory and injunctive relief granted in part; defendants required to leave a reasonable gap for access; no aggravated or exemplary damages awarded; some claims for mandatory removal refused.
Legal Topics
Easements and Rights of Way, Trespass, Damages, Injunctions, Construction of Deeds, Planning Permission, Nuisance
Property Law Easements Land Law Easements and Rights of Way Trespass Damages Injunctions Construction of Deeds +2 more

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Parties

George Perlman

Claimant

Paul Rayden

Defendant

Claire Rayden

Defendant

Procedural Posture

Chancery Division Property Dispute / Post Trial Judgment

Legal Issues

  1. 1 Whether the defendants had the right to use the roadway for construction and access purposes beyond those expressly granted in the transfer
  2. 2 Whether the defendants could open and use a new front door and construct a step/hardstanding over the planting area
  3. 3 Whether the use of the roadway for building works constituted trespass

Ratio Decidendi

The defendants' rights of way did not extend to using the roadway for building works beyond repair and maintenance, nor to creating new projections or permanent structures over the roadway; the right of way permitted access to the new front door, but not the construction of a step or hardstanding over the planting area without the claimant's consent; use of the roadway for construction constituted trespass, entitling the claimant to damages but not to mandatory removal of all alterations; the claimant's right of access for repairs required a reasonable gap between properties, to be determined by the court.

Court Disposition

Claimant succeeds in part; damages awarded for trespass; declaratory and injunctive relief granted in part; defendants required to leave a reasonable gap for access; no aggravated or exemplary damages awarded; some claims for mandatory removal refused.

Orders

  • Defendants to pay damages for trespass relating to use of the roadway for construction and projections into airspace.
  • Defendants to leave a gap between No 6A and any new extension at No 6 sufficient for repair access, as determined by the court.