Article on whether a right of way can be abandoned
Both laymen and lawyers can be too quick to assume that a right of way which has not been used for many years has somehow been lost (or “abandoned” to use the legal terminology). However, a recent Court of Appeal case in England has underlined how difficult it can be for a right of way to be lost in the eyes of the law.
In Dwyer –v- Lord Mayor and Citizens of the City of Westminster the right of way in question was created in 1922 and had not been used for more than 40 years. Yet the Court of Appeal still ruled that the right was subsisting and had not been abandoned.
In this case the passageway in question had been completely blocked at both ends and the beneficiary of the right - the City council – had no access at all. The council’s case was that it did not need to use the right of way at the time in question as it had alternative access arrangements, but that it may need to do so in the future.
The court held that the council’s actions were not consistent with those of a landowner who firmly intends never to use the right of way again and the council had not acquiesced in the closing up of the passageway. Accordingly, Mr Dwyer was ordered to reopen the passageway.
If you have a query relating to a right of way issue in Northern Ireland please contact our Commercial Property Partner Graham Pierce.