Thrings Farms partnering with Farmers Weekly, answer readers’ questions. Polly Ridgway advises a reader’s potential dispute over a prescriptive right over way through their land.
Following a court case over a decade ago, the neighbouring farm acquired a prescriptive right of way through my farmyard. At the time, the use was limited to a few agricultural vehicle movements each day. I have just discovered that the neighbouring farm has obtained planning permission to turn one of the outbuildings into a wedding venue and I am worried about the increase level of traffic which is going to adversely effect the use of the yard. Where do I stand legally?
This case comes down to whether the increased level of traffic over the farmyard to a wedding venue is “excessive use” of the prescriptive right of way.
An express right of way is granted to the user of the right in writing. In contrast, a prescriptive right of way is acquired by “use”; usually 20 years use of the right of way. The starting point is to consider two questions:
- Is there a radical change in the character of the neighbour’s land; and if there is
- Will the change in character of the neighbour’s land result in an increase or alteration of the use on the reader’s farmyard?
For the purposes of this article, let’s assume that there is a radical change in character of the neighbour’s land since the neighbour intends to convert a farm outbuilding into a wedding venue.
Next, it is necessary to determine if this radical change will cause excessive use of the right of way. The ‘extent’ of the right of way granted must be examined:
- An accessway through a farmyard;
- For agricultural purposes;
- With agricultural vehicles;
- A few times a day or night.
The extent of the right of way broadly established above, it is necessary to consider if using the right of way to access the wedding venue is more burdensome on the landowner’s farmyard in contrast with the use for agricultural purposes. With the limited information provided, the practical realities of a wedding venue suggests:
- The use of the right of way will not be for agricultural purposes but rather to access a wedding venue;
- Types of vehicles other than agricultural vehicles will be used by wedding guests and contractors accessing the venue;
- There will be an increase in the volume of traffic using the right of way;
- There will be competing uses; the landowner will want to use his farmyard for agricultural purposes contrasted with the wedding guests’ use over the farmyard;
- There will be an increase in frequency of the use of the right of way; and
- It is likely that there will be an increase in noise and disturbance thereby causing a nuisance.
On balance, this case may be one of “excessive use” however, in any case concerning prescriptive rights of way, the answer is rarely straightforward because it is all a matter of fact and degree. Each case is unique and the outcome will turn on the facts of the case.
Your case is an interesting one and ultimately one that will turn on the detailed specifics. I would encourage you to seek further legal advice from a specialist agricultural property lawyer to give you a better understanding of your particular circumstances.
