Rights of way
You want to install some shiny, new electric gates on your roadway. But horror – the neighbours have a right of way!
Can you do it?
Recent case law has provided guidance on this very situation.
A right of way over land is an easement. It cannot be prevented by physically stopping up the road or obstructing the right of way, as the owner of the benefit can bring proceedings to enforce their ability to exercise their right. Rights of way cases have covered almost every scenario you can imagine to determine whether an interference or obstruction is valid, and the latest case (Kingsgate Development Projects Ltd v Jordan and another) doesn’t disappoint – just how many gates does it take to create an obstruction?
The defendants purchased a property in 2012 which contained a road, over which the owners of neighbouring property had a right of way, which had been granted in 1960. There was originally a gate at the opening of the road, and a further gate at the end of it. The first gate was electrified and could be opened by pressing a button. The second gate was left unlocked. The distance between the gates was approximately 100 metres. Following their purchase, the defendants proceeded to make improvement works to the road, including widening it and installing a third gate, between the 2 already in place. This gate was also left unlocked.
In 2014 a development company purchased the neighbouring property. It claimed that the right of way was not suitable for its intended use, and alleged that it had been substantially reduced or interfered with. Proceedings were issued and the case reached the High Court, which found that the installation of a third gate was a step too far.
It seems that, in this case, 2 gates is enough, but 3 gates is too many.
The courts have historically adopted a pragmatic approach to this issue upholding that a right of way over private land cannot be substantially interfered with.
In a prior case, the court clearly stated that the replacement of wooden gates which were continuously open with electronic gates which could only be opened using a fob created a substantial interference to the right of way.
The 1860 case of Hutton v Hamboro stated that “the question is, whether practically and substantially the right of way can be exercised as conveniently as before”. When applied to the facts of the Kingsgate case, having 3 gates over a 100-metre stretch was deemed to be sufficient interference to warrant action by the court. As the right of way could not be “exercised as conveniently as before”, the court ordered that the third gate be removed.
Interestingly (although irrelevant to the judgement), the court commented on whether the design of the gate made a difference. It was determined that a hand operated gate is not substantial interference. An electric gate which can be opened by pushing a button is easier to operate than a manual gate, and so less likely to be deemed interference. However, where a gate requires a code or fob, it is more likely to be deemed interference as it requires more action.
For those benefitting from rights of way, the Kingsgate case illustrates the importance of ensuring that changes to the land do not infringe the rights. Landowners whose land is subject to rights of way should keep documentary evidence of the use of the right so that they are protected should any dispute arise.
As always, the wording of the easement can impact on the practical application. And rights of ways on public roads are different altogether. That is a story for another day…
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