Farmers Weekly’s Business Clinic experts offer free advice on legal, finance, tax, insurance, farm management and land issues.
Here Becky Smyth – Associate Solicitor, Thrings – offers guidance on a neighbour’s access to their fields.
Q When we originally bought our farm, our neighbours had access to a 20-acre field through our driveway as that field had no access from their own road.
They have since taken internal fences down and the field is now 105 acres. They widened gateways without our consultation and seem to think they have a legal right to take the whole field of silage out by our road, ruining our drive and verges.
There are two gates to their field on our drive and they seem to use the one furthest up. Their field has its own access off their land. Is there anything we can do?
A Your story sounds like a case of intensification of use of an existing right of way – and if so, your neighbours are exceeding their rights and you would be prudent to nip this in the bud as soon as possible.
First, you should establish the character and extent of the original right of way that benefits your neighbours. You say it goes across your driveway, so it may have been created when you purchased your farm, or prior to that, but it is clear it exists.
Becky Smyth, Associate Solicitor, Thrings
If that right of way is legal, then it may be expressly mentioned in your title deeds and that should be conclusive to tell you the nature of their right.
If not, however, then it may be implied, or even be a “prescriptive” right which arises by long use for a certain purpose. If the latter, the extent will be determined by finding evidence of what occurred to give rise to it from its creation.
The next thing to consider is the purpose for which the right of way was created. It is likely, given the context, that it was at least for agricultural purposes, but it may be unlimited.
In any event, it is imperative to establish the extent of the area of land which benefits from the right of way.
If it is just the 20-acre field, it would appear you have grounds to resist the right being used for the additional 85 acres. However, if it was originally created to benefit all 105 acres then you may not have a basis to object.
Keeping good relations with the neighbours is always important in the industry, so being sure of your position and stating that clearly may result in more facts being disclosed, or it may even be enough to resolve matters.
If the right of way remains ambiguous and an issue, you can ask the courts for a declaration to state and confirm its nature and extent. This may be sufficient to make it clear to your neighbours what rights they do/do not have to use the driveway and put a stop to its incorrect use (or clarify for you that their use is permitted).
Let’s assume it was granted for agricultural purposes, so the nature of the use is not being offended, but it only benefits the 20-acre field. In that case, using the driveway for harvesting the extra 85 acres as well intensifies the purpose beyond its original threshold, and there is no right to do that.
If putting your case informally is not respected, do remember that there are always risks associated with any litigation, but it sounds like you would have grounds to seek the remedy of an injunction through the courts (usually accompanied by the declaration) to stop the continued use for the extra land.
Any claim for compensation (damages) as well may be limited to the cost of reinstating the driveway and verges.
Be aware that asking for an injunction is an equitable remedy, so the court’s discretion will be influenced by both parties’ actions. For instance, your neighbour’s alternative gates to the additional 85 acres will be an important fact.
Also, from your perspective, obstructing the right of way would unlawfully prevent the right of way being exercised for its legitimate purposes so could undermine your case.
Importantly, so could any delay to defend your position, so it would be prudent therefore to seek specific legal advice to establish your position and the facts of your particular case, as soon as you can.
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