Re-routing rights of way

If you have the benefit of a right of way and the owner of the land over which it crosses obstructs the route, there is established case law that would allow you to use a different route over other land belonging to the owner. Does this mean that if you are hoping to develop land over which there are rights of way, it is necessary only to provide an alternative route rather than go through the lengthy, and possibly costly, process of obtaining a release of the current right of way and granting a new right over the alternative route?

A recent High Court decision held that although the existence of an alternative right might affect any remedy the court would grant following an obstruction to the route by the owner, it would not necessarily extinguish the original right of way. So there are no shortcuts!

The case involved a right of way running along the back of an estate of houses. A dispute arose when Mr Heslop built a wall and pillars to make a gateway on his land, reducing the usable area of the right of way to 16 inches. Mr Bishton complained but Mr Heslop argued that Mr Bishton could use other land belonging to Mr Heslop in order to use the right of way. He argued that the previous right of way had been extinguished as it was not actionable due to the existence of the alternative route.
The High Court was quite clear that:

• A landowner whose land was subject to a right of way has no right to alter the route unless this is anticipated in the actual grant of the right
• Where a right of way is obstructed, the existence of an alternative route might affect the remedy a court might order, for example the court might order compensation as opposed to an injunction to remove the obstruction
• Even if the owner of the land made a new grant of a right of way, the user of the right did not have to accept it and its existence would not extinguish the right of way over the previous route.

The Law Commission has recognised that the law on the extinguishment of easements needs to be reviewed. A consultation paper was issued on the topic last year and a draft bill is awaited.

Law: Heslop v Bishton [2009] EWHC 607 (Ch)