Not every encroachment amounts to “substantial interference”

The High Court has refused permission to appeal in a dispiriting boundary and right-of-way dispute, emphasising that minor encroachments on an easement may not constitute a substantial interference such that it warrants court intervention.

Background:

This judgement concerns an appeal by the owners of Peartree Cottage (PTC, the appellants) against the decision of a lower court regarding a long-running dispute with the owners of Forge Cottage (FC, the respondents). Until 1944, PTC and FC were in single ownership until a conveyance date of June 1944 was entered into, separating both properties and granting a right-of-way over a strip of land adjacent to it to the benefit of PTC. The registered title of PTC also records this benefit.

The dispute arose when the respondents replaced an existing fence, resulting in the appellants claiming that the new fence obstructed the right-of-way and that it encroached on PTC and prevented access to a shared brick outbuilding. The respondents denied that any part of the new fence encroached on PTC land. They claimed trespass due to the appellants' installation of an oil line and a patio area over the right-of-way, seeking injunctive relief. The lower Court Judge found in favour of the respondents, and the appellants appealed. 

Decision: 

The High Court refused permission to appeal, as none of the grounds for appeal disclosed any real prospect of success. Regarding the position of the boundary, Mr. Justice Smith found the appellants' arguments unpersuasive and emphasised that the 1944 Plan itself had inaccuracies and was not drawn to scale, as identified by both experts. Given these ambiguities and inaccuracies, the Lower Judge was entitled to have recourse to extrinsic evidence (including expert and factual evidence) to determine the boundary. He concluded that the Lower Judge's finding on the boundary was within the range of findings reasonably available on the evidence and was thus not perverse.

Regarding the right-of-way, the Judge noted the Lower Judge had correctly stated the law on substantial interference. He upheld the Lower Judge's factual findings, including that the right-of-way was not initially uniformly 4 feet wide. He found that the Lower Judge was entitled to conclude that the interference was minimal and thus not substantial, accepting the evidence that a wheelchair user could still use it conveniently. He also rejected the hypothetical example of carrying a "metre-wide tray with full glasses" as not advancing the appeal. 

Finally, on trespass, Mr. Justice Smith found this ground "hopeless". He affirmed the Lower Judge's finding that the patio was on FC's land (as the right-of-way is part of the servient land) and thus constituted a trespass. Installing a patio is an "alteration of land," and not maintenance of a right-of-way.

The equitable maxim was found to be "wholly inapposite" and was not properly raised.

For the estoppel argument, Mr. Justice Smith "had no hesitation in rejecting these grounds". His reasons included: The appellants' pleaded defence was explicitly "easement of necessity," not estoppel. The words "acquiescence" or "estoppel" and their necessary legal ingredients (mistaken belief, reliance, detriment, and unconscionability) were not pleaded. The estoppel argument was raised for the first time in closing submissions, after the respondents had closed their case. Allowing such a "highly fact-sensitive proprietary estoppel defence" at the eleventh hour, without proper notice, disclosure, and specific witness evidence, would have caused "obvious injustice" to the respondents, who would have conducted their defence "very differently." It would have likely constituted a "serious procedural irregularity" to allow the new argument at that stage.

Implications:

This case highlights that even old, formally executed documents can be subject to ambiguity or inaccuracy, and parties should not assume that old deeds, even with plans, are unassailable or perfectly clear. The Judge's willingness to admit and rely upon the expert evidence of surveyors reinforces that courts will look beyond the "four corners" of a deed when a plan is otherwise inaccurate or ambiguous. It is, therefore, crucial to present all available evidence, including historical plans, photographs, witness testimony about longstanding features, and expert surveyor analysis that serves to reconcile any discrepancies.

This case reiterates that not every interference with a right-of-way is actionable. The test is whether it "substantially interferes" with the reasonable exercise of the right, judged by whether the right can still be exercised "as conveniently and practically as before". While an encroachment on a narrow path might seem substantial, the Court focused on its practical impact.

Holders of easements must be careful not to exceed the scope of their granted rights or physically alter the servient land without express permission. What might seem a mere "improvement" to the easement holder can constitute an actionable trespass to the landowner.

Proprietary estoppel cannot be used as a last-minute argument and must be clearly pleaded. Springing a complex defence like proprietary estoppel in closing submissions is a major procedural misstep and will be rejected.