Right of Way Easement
The Wimax case involved a dispute arising between neighbours over a right of way (driveway) easement.
Wimax and Fuge were neighbours along a right of way. Wimax owned the land on which there was the driveway; Fuge benefitted from the free and unimpeded right to use it to access their property.
Wimax had built structures on its property encroaching on the right of way area, including retaining walls and concrete parking walls. The structures replaced earlier structures, improved the driveway’s appearance and did not encroach further than previous structures. They were, however, larger and more permanent than before.
Fuge discovered the structures encroached on the driveway and demanded their removal. Wimax refused, arguing that the structures did not impede Fuge’s access and would be an unnecessary cost to remove.
Fuge initiated arbitration seeking an order to enable the court to enforce the terms of the easement. The arbitrator found that the structures did not substantially interfere with the right of way.
Fuge appealed this decision to the High Court; this overturned the arbitrator’s decision finding that the structures amounted to a wrongful interference.
Wimax then appealed to the Court of Appeal.
The Court of Appeal held that Fuge needed to show that there was a ‘substantial’ interference with their ‘reasonable’ use of the right of way. Fuge could not.
Despite the structures, Fuge could still use the driveway to access the property, just as the previous owners had done for over 60 years. Further, Fuge had no plans to develop their property on which the structures would impact. On balance, Fuge had rights over an adequate and effective driveway which did not need to be widened and was still useable despite the structures.
The Court of Appeal overturned the High Court’s decision and Wimax was entitled to retain the structures.
Fuge, dissatisfied with this decision, appealed to the Supreme Court. The appeal was heard on 17 February 2026, although the judgment has not yet been delivered. It will be interesting to read it once it is released.
If you are a party to a right of way and have any questions regarding your rights and obligations under the terms of the easement, please contact us for advice.
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