In the recent High Court case of Heslop v Bishton & others  Mr Heslop constructed a gateway, the walls and pillars of which encroached onto a right of way. In order to use the right of way, those with the benefit of it (including Mr Bishton) had to walk on a small strip of Mr Heslop's land that was unaffected by the right of way. Mr Heslop did not object.
Mr Bishton brought an action claiming that the pillars and walls were a "substantial interference" with his right of way. Mr Heslop claimed that the interference was not "actionable" because the deviation (onto the small strip of his land) meant the alternative right of way was equally convenient as the original right of way. He offered Mr Bishton a ten year licence to use the small strip of land.
The High Court held that:
Mr Heslop could not unilaterally alter the right of way and therefore could not prevent acts of interference with the old right of way, from being actionable.
The existence of the new right of way went to the remedies available to Mr Bishton, not to the existence of the right.
Where there is an equally convenient new route, the court may refuse to grant an injunction but it is not prevented from granting other relief. It would be unjust if a legal right was extinguished by an equitable right, only for the equitable right to be defeated at a later date leaving the land owner with no right at all.
It is important for any conveyancing solicitor or property lawyer to consider whether a new right that is to be granted is intended to be in addition to or instead of an existing right of way . Sometimes it may be necessary to enter into a deed of release as well as a deed of grant?
The Property Information Questionnaire ( now a compulsory part of a Home Information Pack ) has specific questions relating to rights of access. If there are legal rights or you think there may be legal rights you should ask your conveyancing lawyer to assist you in completing this section of the PIQ. Bringing this matter to the attention to your conveyancing solicitor or property lawyer at this early stage could dramatically assist the conveyancing process. If the matters outlined in the above case came to light during the conveyancing process this would certainly hold up the transaction and at worst could result in the transaction aborting. It therefore make sense the have your conveyancing lawyer formalises and address the conveyancing issue as the property is being marketed.