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Here, Russell Reeves, partner at Thrings, discusses rights of way.
See also: Business Clinic: who is responsible for fence upkeep?
Q: A residential house that runs up the side of our farm drive has just been granted a change of use to a beauty parlour.
To the front it has a door leading to the roadside, to the side it has a door leading on to our driveway.
The title deeds for that dwelling state that the owner in title has a right of way and for all purposes up the side of our driveway leading to the side door.
Can she instruct the general public (customers) to use this entrance or is this only for the owner in title to use?
The dwelling has been residential for the last 11 years and prior to that it was used as an office with only one person using it.
A: The first thing to say is that the planning regime is entirely separate from property rights including rights of way.
From your question you don’t seem to be querying the legality of the change of use under planning law and therefore I shall assume that you are content that is legal.
Instead, your question is whether the beauty parlour’s customers may access the beauty parlour via your drive.
The answer will depend upon whether the land on which the beauty parlour is situated benefits from a right of way and if so, what usage is permitted under its scope.
The fact that the beauty parlour’s customers may access via the front door rather than use your drive makes no difference.
There are a number of ways that rights of way can be created. These include prescription (commonly known as long usership) and implied grants.
Based on what you say, these do not seem to be relevant here but would require consideration in order to rule them out.
You have identified a right of way “in the deeds” which you say is for “all purposes”. Rights of way in deeds are known as express grants.
The question of what type and amount of use of the right of way is permitted by the express grant depends upon what the deed says.
In other words, it will depend on the proper meaning and interpretation of the deed.
The exercise is therefore one of interpreting the express grant to find out its true meaning and I would need to see the deed in its entirety in order to offer a considered opinion.
However as a general legal principle, subject to any restriction to be gathered from the words of the grant or the surrounding circumstances, a right of way may be used in the manner authorised by the grant for any purpose and to any extent for the time being required for the land enjoying the benefit of the right (the beauty parlour) or any part of it, irrespective of the purpose for which that land was used at the date of the grant.
On that basis the change of use from residential to a beauty parlour would make little difference.
Full consideration of the deed and the circumstances surrounding the initial grant of the right of way would need to be carried out in order to advise you properly.
For example, sometimes the wording of the deed or the circumstances may be used to argue that the scope of the right of way is narrower than first appears.
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