It is a fairly common situation, particularly where smaller parcels of land are purchased, that access to it is required over other land which is not part of the farm. In these cases, a right of access either for agricultural or for all purposes is routinely granted with the land giving a right of access to it from the public highway. However, a judgement in a case* in January this year has highlighted some cause for concern about how access rights are interpreted.
In this case, the Court of Appeal was asked to decide upon the extent of a right of way to some farm land. In particular, they examined the width of the right and whether it included the verges and airspace on either side of the defined track. The wording of the right granted was in reasonably common form in that it granted a right:
“To go, pass and repass, with or without motor vehicles and agricultural machinery or on foot only (as appropriate) over and along the access way over the property shown coloured yellow on the said plan.”
The access track itself was not a straight track but had several sharp bends in it. The issues revolved around the ability of one party to access their land with large pieces of agricultural machinery. In this respect, it was not just the width of the machinery but also the length of the tractor/machinery combination that caused a problem.
The first contention was that the right of way allowed for access by agricultural machinery and, therefore, all types of machinery should be allowed. This would include machinery which extended in width in excess of the wheelbase of the implement and even the width of the track, especially in the airspace above it. The second contention was that long combinations could run over the verge at certain points.
In deciding the case, a material fact was that the applicants contending these arguments could not show regular use by particularly wide machinery or long combinations as the verge showed little evidence of tracking over it.
The judges’ decision was that the right of access should be construed narrowly, in that such a right does not extend any further than the width of the track itself and that it does not include use of the verge to track around tight corners, except where this is already evident (and therefore has become part of the track).
So what are the implications for those who access land via a right of access?
- Check that the access track is wide enough for your machinery. Some rights specify the width.
- As farm machinery gets ever bigger, you need to consider whether new machinery will fit down the track without swinging outside the track space.
- Consider the length of combinations and their manoeuvrability within access tracks.
- If large pieces of kit access the land irregularly and need to use the verge, consider permanent improvements to ensure that this can be done within the scope of the right granted.
* Oliver and Anr v Symons and Anr  EWCA Civ 267