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26 June 2017

Right of way - erection of gates and a narrowing right of way

Kingsgate Development Projects Ltd v (1) Peter James Jordan (2) Joy Mary Jordan [2017] EWHC 343 (TCC)

Summary

A person who erects gates over a right of way will not necessarily be obstructing it if the obstacles do not ‘substantially interfere’ with the right of way. However, numerous gates within a short distance may be perceived as an interference even if, when considered in isolation, a single gate might not be.

Facts

The Claimant owned farming land with the benefit of a right of way across the Defendant’s land.  The proceedings were issued when the Defendant erected three gates on the track where the right of way existed. Additionally, the track had been re-routed. The Claimant alleged that the changes amounted to a ‘substantial interference’ with the right of way.

The first gate was an electric gate that opened at the push of a button and was situated off the main road. This gate was narrower than the right of way that had originally been granted.  The second gate featured on the track between the first and the third gate and remained open. The third gate separated the Claimant’s domestic property from the Defendant’s farmland and was not locked.

The route of the track, which existed entirely within the boundary of the Defendant’s land, had been changed so that it now featured a sharp turn. This turn made it difficult for large lorries to navigate the track, causing particular difficulties for third parties delivering services to the Claimant.

The Claimant argued that the three gates and the new track route substantially reduced the right of way, rendering it unsuitable for the use intended.

Decision

The Court found that:

  1. The first gate did narrow the right of way but not so as to cause a substantial interference as the narrowest point on the track caused a natural restriction and this point was narrower than the first gate. Additionally, whilst this gate was an electric gate, it was not locked and could be opened at the press of a button; it neither required a code nor a fob.  As such, it was more convenient than a manually operated gate, particularly since it closed automatically. Therefore, the first gate did not cause any substantial interference with the right of way.
  2. As the third gate remained open and had not been the subject of any complaint until the dispute arose, this gate was also deemed to have caused no substantial interference.
  3. The second gate did not noticeably interfere with the right of way.  However, it was difficult to justify its presence as it meant three gates on a track less than 100m long. This constituted a substantial interference with the right of way and an injunction was granted requiring it to be removed.
  4. The sharp bend in the new route did cause difficulties for larger vehicles navigating the track. Therefore, the right of way was to be restored to its initial straighter route.

 


This article was written by Emma Humphreys, for more information please contact Emma on +44 (0)20 7203 5326 or emma.humphreys@crsblaw.com

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