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Merlin Real Estate Limited v Balaam

Jonathan Gaunt KC, who appeared for the Claimant in this case, wrote the following case note. 

 In 1982 Mr Pyatt, a property developer and entrepreneur, and Mr Balaam, a farmer, together bought an Estate from executors and partitioned it between them. The Estate comprised a Manor House and six cottages and an area of agricultural land and farm buildings. Mr Pyatt took the Manor House and cottages and Mr Balaam the land and the farm buildings. 

Access to the Manor House and cottages from the highway lay over a driveway which was part of the land conveyed to the farmer, subject to a right of way at all times with or without vehicles over the driveway to obtain access to Mr Pyatt’s land. 

 In 2020 Mr Pyatt sold his property to Merlin. Since 1982 he had acquired and converted into dwellings some of Mr Balaam’s buildings and had also converted a number of outbuildings into residences and obtained planning permission for nine more dwellings. At the date of the sale some twenty two of his houses were entitled to use the driveway. Merlin intended to construct nine or ten more. 

The farmer, who had not previously complained of the use of the driveway by the residents, now asserted that it had become excessive and was obstructing his agricultural operations and that the further development intended would make things worse. As a result of the dispute Merlin was unable to sell its new houses and sought declarations that the existing and proposed use of the driveway was authorised by the grant and would not be unlawful. The farmer counterclaimed for declarations that it was and would be. 

There was an issue as to whether the driveway (which was single track and originally 560 metres long) included the verges. Her Honour Judge Karen Walden-Smith held that the grant did include the right to use the south verge; alternatively, that Mr Pyatt had obtained a prescriptive right to use the two metalled passing places constructed in that verge in 1993; that the existing and proposed use of the driveway by the residents was not interfering and would not interfere unreasonably with the farming operations. She granted the declarations sought and dismissed the counterclaim. 

The judgment sets out in some detail and applies the case law on the construction of express grants of rights of way and the limitations to which they are subject. 

Judgment was handed down on 24 April 2024 in the Cambridge County Court. 

You can read the judgment here

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