Thompson v Bee & Anor [2009] EWCA Civ 1212 (20 November 2009)

Thompson v Bee & Anor [2009] EWCA Civ 1212 (20 November 2009)

The right of way over the Track is not limited to agricultural purposes but extends to all purposes connected with the Garth, as expressed in the will and assents construed as a single transaction; however, use for access to three proposed residences would constitute excessive user and actionable nuisance, justifying an injunction prohibiting such use.

Citation
[2009] EWCA Civ 1212
Parties
Appellant: Stephen Thompson; Respondent: Jane Bee; Respondent: Alan Bee
Jurisdiction
England and Wales
Judgment Date
20 November 2009
Procedural Posture
Appeal / Court of Appeal (civil Division)
Outcome
Appeal allowed in part, declaration varied, injunction upheld with modified wording.
Legal Topics
Right of Way, Implied Easements, Construction of Wills, Excessive User, Nuisance
Property Law Easements Trusts and Estates Right of Way Implied Easements Construction of Wills Excessive User Nuisance

Case Brief

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Parties

Stephen Thompson

Appellant

Jane Bee

Respondent

Alan Bee

Respondent

Procedural Posture

Appeal / Court of Appeal (civil Division)

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 user and actionable 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 expressed in the will and assents construed as a single transaction; however, use for access to three proposed residences would constitute excessive user and actionable nuisance, justifying an injunction prohibiting such use.

Court Disposition

Appeal allowed in part, declaration varied, injunction upheld with modified wording.

Orders

  • Declaration that the right of way is not limited to agricultural purposes but does not permit user for three residences proposed on the Garth.
  • Injunction prohibiting use of the right of way for access to and from three residences proposed to be built on the Garth.