A recent case has considered whether the presence of gates can amount to a substantial interference with a right of way.

For an obstruction of a private right of way to be actionable, the interference has to be substantial and this is what was alleged in the case of Kingsgate Development Projects Limited v Jordan and another [2017] EWHC 343.

Facts

Mr and Mrs Jordan purchased their property in 2012. Two years later, Kingsgate purchased an adjacent farm which had the benefit of a right of way over a track on Mr and Mrs Jordan’s property. At the time Mr and Mrs Jordan purchased their property, there was an electric gate at the entrance to the track from the main road. This gate (Gate 1) could be opened by the push of a button. Further up the track another gate (Gate 2) was left unlocked and had to be opened manually.

Mr and Mrs Jordan undertook some work to land next to the track and also installed a third gate (Gate 3) between Gates 1 and 2. This gate was also left unlocked and had to be opened manually.

Kingsgate alleged, amongst other things, that the right of way had been substantially interfered with by the installation of a third gate and that the electric gate (Gate 1) also interfered with its right of way across the track.

The High Court agreed with Kingsgate and found that the three gates, which were all located within 100m of each other, did amount to a substantial interference with Kingsgate’s right of way and ordered Mr and Mrs Jordan to remove the gate and pay £229 plus interest in damages.

However, in respect of Gate 1, the Judge looked at the difference between electric gates that opened at the push of a button and electric gates that require a fob or a code to be entered. In Page v Conway Investments [2015] EWCA Civ 1061, the Court found that gates that could only be opened by a fob or code amounted to a substantial interference whereas, in this case, the distinguishing factor was that the electric gate (Gate 1) could be opened merely with the touch of a button. The Judge in Kingsgate held that a gate such as this was easier to operate and was, in fact, easier than a manually operated gate and therefore the electric gate in this scenario did not amount to a substantial interference.

Comment

This case highlights that landowners with rights of way over their land should be careful when picking the type of gate to install. Whilst a gate is usually used for security, it may be that more money is saved by installing a simple push button electric gate and thereby avoiding a protracted dispute with your neighbour. As the test is “substantial interference” the cases can be very fact specific so if you are in doubt then seek advice.

by Siân Westby
Solicitor (Litigation)