This case concerned a dispute over land known as 'Fouracres', owned by Mr Donald Skene, which benefitted from a right of vehicular and pedestrian access over private roads in the grounds of the neighbouring Fernie Castle, a hotel and wedding venue owned by Braveheart Hotels Ltd. The crux of the dispute related to the building of two sets of gates by Braveheart Hotels over one of the access routes to Fernie Castle, which Mr Skene objected to. There were two private routes into the Castle car park for visitors, a northern route and a southern route which joined together toward the end. Mr Skene's right of access extended to both routes.
For reasons of transport safety, Braveheart Hotels attempted to limit access to the northern route by erecting timber gates at the start and end of this route, thereby diverting most traffic to the southern route. Mr Skene was free to open the gates to the northern route when required. Mr Skene, however, contended they were heavy and difficult to open, often needing to be lifted rather than simply pulled, which was not possible for a man of his health.
Mr Skene, therefore, brought an action seeking an order for removal, claiming that the gates were an unreasonable obstruction to his right of access. Braveheart Hotels then counterclaimed and sought to prevent Mr Skene from damaging the gates, contending that he had repeatedly attempted to open the gates using his utility vehicle and had also attempted to remove the gates from their hinges.
The legal test as to whether a gate is an obstruction or not and whether a person of average strength and agility (i.e., 'the ordinary able-bodied adult') would be able to open it without material inconvenience. Therefore, Mr Skene's health was not a consideration for the court in the assessment, and, in this instance, the court found that these gates met the relevant test when attempted to be opened. Furthermore, the court asserted that the erection of the gates was justified in the interests of public safety for the hotel guests, to direct traffic down the southern route, thereby minimising potential collisions.
However, the court did find that Mr Skene had a right to alter or adapt the gates to his convenience and a right to enter onto the neighbour's land to carry out the works required to maintain his right, albeit at his own expense. The court went on to note that should Mr Skene not wish to do so, any inconvenience caused by the northern route gates could be avoided by taking the southern route, which did not present any safety risks. The court also granted Braveheart Hotels order requested to prevent Mr Skene from damaging or removing the gates.
Constructing gates over an access route is likely to amount to some form of interference and inconvenience. However, the courts generally permit the right to do so, provided that any such construction is reasonable and proportionate with rights of passage over that land.
The court's assessment of such interference will depend on the facts of each case, but discussion between landowners and rights holders is encouraged prior to any constraints being created to attempt to reduce any disputes and ensure a reasonable agreement is reached. Landowners do need to be mindful of their obligations to any rights holders and ensure that the ability to exercise rights of responsible access is not unreasonably restricted to cause a material inconvenience to the person with the benefit of the rights.
If you have any questions or would like further information regarding interference with rights of way, you can contact our Property Litigation Team on 0161 941 4000 or email The Property Litigation Team.