Land owning clients will be well aware of the various issues that private rights of way can cause.

The subject of rights of way is highly complex and consequently there is a great deal of case law on the subject. Clients may be interested to note that the High Court has recently decided a curious case which has helped to further clarify exactly what is classified as substantial (and therefore actionable) interference by a land owner with an existing private right of way running through their land.

In this case, a Mr and Mrs Jordan bought a property with a track crossing it, the track being subject to an existing right of way granted in 1960 to the neighbouring property, Kingsgate Farm. When the Jordan’s purchased the property there was an electric gate at the entrance to the track off the main road, which opened by pushing a button and closed automatically, provided it was not obstructed. Further along the track there was a second gate which was unlocked.

The Jordan’s undertook various works in the vicinity of the track, replacing some fencing (which widened part of the track), removed sheds and vegetation and installing a third gate at a bend in the track, this third gate was also kept unlocked.

In 2014 Kingsgate Farm was acquired by a development company, having previously been used as a poultry farm. A dispute then arose between the new owner of Kingsgate Farm and the Jordan’s with regard to the route and extent of the right of way. The new owner claimed that the right of way had been substantially reduced and /or interfered with by the Jordans so that it was now unsuitable for its intended use.

The High Court agreed, holding that the erection of a third gate, so that there were three gates within less than 100m of each other, amounted to a substantial interference with the private right of way and ordering the Jordan’s to remove the gate. The Judge stated that it was not the nature of the gate itself that was the problem but the fact that there were now three gates in close proximity. This was deemed excessive and therefore amounted to substantial interference.

In the case, the High Court also distinguished between electric gates that were operated by pressing a button and those which require a fob or code, deeming those that could be operated by pressing a button as actually easier to open than manually operated gates and therefore not constituting a substantial interference with a right of way. However, electric gates which require a fob or code, did.

We can therefore surmise that although the presence of a gate itself will not necessarily amount to substantial interference with a private right of way, several gates within a short distance of each other could be classed as substantial interference, resulting in a court ordering their removal. Clients should also be aware of the different treatment of various types of electronic gates by the Court, when considering what boundary features to erect on their properties.

If clients have any further queries regarding private rights of way please don’t hesitate to contact our experienced solicitors here at Myerson Solicitors on 0161 941 4000 or email us lawyers@myerson.co.uk.

A link to the case is found below:

http://www.bailii.org/ew/cases/EWHC/TCC/2017/343.html

Contact Us

Share our latest news update