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Bradley & Anr v Heslin & Anr  EWHC 3267 (Ch)
The High Court held that the claimants had acquired an equitable easement to open and close a gate for all purposes connected to the reasonable enjoyment of their property, so long as such use did not substantially hinder the defendants’ reasonable enjoyment of their own property.
The parties were neighbours, with the claimants at No. 40 having a right of way over the driveway of No. 40A, owned by the defendants. A gate had been put up across the driveway entrance by one of the parties’ predecessors. The pillars to which the gate was attached were on different parcels of land, one of which (“the excluded triangle”) was within neither neighbour’s title.
The claimants wanted the gate closed for security reasons and the defendants wanted it open for means of easier access to the driveway. After a period, the defendants padlocked the gate open. The claimants sought declarations as to their rights as well as an injunction requiring the defendants to remove the padlock.
The Court was asked to determine:
The southern gate pillar was found to belong to the claimants, despite being technically within the boundary of 40A. The judge considered it to be an “integral part to the frontage… [forming] part of a coherent design of the front garden of and forecourt to the villa on No. 40.”
He also concluded that a previous owner had acquired title by conducting substantial works which reformed the boundaries.
The judge offered two possible alternatives for the transfer to the claimants of the ownership of the excluded triangle upon which the northern gate pillar was built, suggesting that the previous owner had acquired title through adverse possession against the true owner, or through proprietary estoppel.
The judge found that the gates hanging between the posts should also belong to the claimants.
As the judge noted, “ownership of the gates does not determine the real question in controversy between the parties...: when (if ever) may they be closed?”
The judge considered that the gates could not have been meant to have been “purely ornamental,” since there was evidence of their use soon after installation. However, he noted that the closing of the gates by the claimants would constitute a trespass over the defendants’ land unless an easement existed in the claimants’ favour.
Applying Dewett v Towler and Suffield v Brown (which concerned the right to hang a clothes line and bowsprit, respectively), the judge found that the situation could amount to an easement accommodating the dominant tenement since “it neither amounted to a claim to the whole beneficial use of the driveway, nor rendered the defendants’ ownership of the driveway illusory.”
The judge remarked that the right to open and close the gates over the driveway at all times and for all purposes connected with the enjoyment of the claimants’ land could not have been acquired through prescription; the use lacked the requisite characteristics of “degree and frequency…[having] about it a permissive quality.”
The evidence also failed to support any right based on lost modern grant.
The judge concluded that the disputed right did in fact have a legal basis as an equitable easement or “user-based right”, as described in R v Sunderland City Council.
It was held that the claimants had the right to open and close the gates for all purposes connected with the reasonable enjoyment of their property, so long as such use did not substantially hinder the defendants’ reasonable enjoyment of their own property.
Whilst the defendants had not been entitled to padlock the gate open, the claimants were also not entitled to an easement permitting the opening and closing of the gates at all times and for all purposes.
The judge therefore ordered that the gate be unlocked and that the parties arrange “adequate opening arrangements,” including guidelines as to times of opening and the installation of an electric gate.
This article was written by Emma Humphreys.
For more information please contact Emma on +44 (0)20 7203 5326 or firstname.lastname@example.org