Easements - right of way - erection of gates
When considering whether an obstruction constitutes a substantial interference with a right of way, the court should consider the position before and after the installation of the obstruction.
It was "not relevant or helpful" to ask whether a different, hypothetical obstruction would constitute a substantial interference.
The Respondent was the owner of farmland bought at auction in 2000 from the Appellant's predecessor in title.
The land was bought with the benefit of a right of way along a roadway over the Appellant's farmland, connecting the Respondent's land to the highway.
An aerial photograph taken some time before the conveyance showed wooden gates on the roadway (at the entrance to the highway) which were left fully open.
According to the Respondent, these gates had never been closed or usable since his purchase of his land.
The wooden gates became dilapidated and the Appellant installed new electronically - operated gates, which could be opened only by the use of a fob or by a four digit code.
A fob and the code were offered to the Respondent by the Appellant but he declined to accept them.
Did the installation of new electronic gates by the Appellant constitute a substantial interference with the Respondent's reasonable use of the right of way?
The judge at first instance applied the test in West v Sharp (1999) 79 P&CR 327; namely that "there is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently after as before the alleged obstruction".
He compared the position with the electronic gates in place and the previous position of no gates (or no gates capable of being used) and concluded that the Appellant had unlawfully interfered with the Respondent's right of way by installing the electronic gates.
Decision on appeal
The Court of Appeal agreed that the installation of electronic gates constituted a substantial interference with the Respondent's right of way.
By comparing the position with the electronic gates in operation with the previous lack of operational gates, the judge at first instance had applied the correct test and the correct manner.
The Court rejected the Appellant's argument that his installation of the electronic gates should be compared with the hypothetical position if these had replaced effective manually operated gates.
(The Appellant contended that the Respondent could not have objected to the replacement of such gates with similarly manually operated gates.)
Whilst the Court accepted that such an argument might be available where manually operated gates were previously in place and used to close a roadway, this was not the case here: there were no usable gates at the time of the conveyance.
The Court of Appeal therefore concluded that this hypothetical argument was neither relevant nor helpful.
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