8th August 2017

Developer’s Question: Rights of Way and Intensification of User

At a glance

I am looking at a site which I want to develop. There is a right of way over an access road to the rear which says: ‘a right of way over Kings Road either on foot or on horseback either with or without waggons carts and carriages’ Would the plot buyers be able to use this access way with their cars and vans?

The answer is not clear cut.  The right of way could arguably include access with cars and vans – there are cases which say that words like ‘wagons’ and ‘carriages’ can extend to other types of, more modern, vehicles. The problem is that you then have to look at the construction of the roadway itself for evidence of what it was intended to be used for so that is not a definitive ‘yes’.

There is also a risk that if the development will lead to the access way being used more than it currently is then there could be an argument that your plots buyers will not be able to rely upon this right as it will lead to an intensification of user.  The safest option would be to explore if indemnity insurance is available in the first instance.

For any assistance with your development needs, please contact Isabel Alderton-Sell by calling her on +44(0)1293 558520 or by emailing Isabel.

This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.

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