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Don’t let a right of way dispute get out of hand. How we can help

Don’t let a right of way dispute get out of hand. How we can help

It started with two sets of neighbours falling out over an inherited right of way and ended – as these disputes so often can – with a hefty legal bill for one couple.

A six-year feud over a six-foot fence has cost Gary and Kerry Hambling a total of £160,000 after their appeal to have it removed was turned down by the High Court.

The solid wooden fence with concrete posts and gravel boards, effectively surrounded Mr and Mrs Hambling’s property, Garden Cottage, and stopped them crossing their neighbours’ drive to access the field they owned opposite their house.

The first £100,000 went on the initial court hearing – which Judge Karen Walden-Smith described as a ‘highly unfortunate case where owners of two country properties have not been able to find a way in which they can co-exist without friction’.

The next £60,000 was shelled out on the failed appeal when the judge agreed with the first decision that the fence erected by the Hamblings’ neighbours should stay put.

What went wrong in this right of way dispute?

Judges have long been calling for warring neighbours to try to resolve their problems through mediation rather than battling it out in the courts at vast expense.

But obviously, as in this case, this advice sometimes falls on deaf ears.

Until relations soured, Mr and Mrs Hambling had been allowed to use their neighbours’ driveway to access their field on the other side because of an inherited right of way.

But everything went downhill when Mr and Mrs Hambling, who own a utilities installation company, obtained planning permission to turn the field into a car park for vans and trucks.

Unhappy about this, their neighbours, Garry and Jenny Wakerly, responded by putting up a six feet fence on either side of the driveway.

This, say the Hamblings, meant they were effectively boxed into their home with the only way to access their field to leave by their own driveway, go along the main road and then back up the Wakerlys’ drive rather than straight out of their own front door.

In addition, they claimed, their neighbour’s move had wiped £100,000 off the value of their home and made it impossible to sell.

What did the law say in this right of way row?

The legal argument centred on the wording of this inherited right of way which had been granted to the previous owners of Garden Cottage in 2001.

It said the Wakerlys’ driveway could be used ‘for access to the field but not to Garden Cottage’.

The County Court agreed this meant the fence must stay and this was confirmed by the High Court which ruled in the Wakerlys’ favour.

Dismissing the appeal, Judge Sir Anthony Mann, said: “The grantor of the (right of way) did not want the track blocked by domestic and delivery vehicles as being a reason why it was framed so as to exclude the possibility of the right of way being used for access to the cottage at all.

“The grant actually forbids access to and from the cottage, and that must mean wherever one is coming from. There is no scope for arguing for ‘ancillary’ use in these circumstances.”

How we can help

When it comes to disputes about rights of way and easements – taking early advice can be crucial in helping you achieve the result you want.

Our Property Disputes team provides specialist guidance and expertise with Wards Solicitors highlighted for praise in the latest independent Legal 500 guide for 2023. Our lawyers are commended for their outstanding professional service standards and high levels of technical expertise.

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