It has often been said that the category of easements is not yet closed and the courts continue to prove this by adding new rights to the list of legally recognised easements. Bradley v Heslin [2014] EWHC 3267 (Ch); [2014] PLSCS 278 establishes that a right to hang a gate in the airspace belonging to the owner of a driveway can be a legal easement.
The court had to consider the point because the owner of land that benefitted from a right of way claimed that he had acquired a right to install, and to open and close, a gate across the driveway at all times and for all purposes connected with the use and enjoyment of his property. The owner of the driveway objected to the closure of the gate because of the inconvenience that this would cause. He claimed that its closure constituted a trespass and padlocked the gate open.
The judge was surprised that the parties had not agreed to close the gate at certain specified hours or to install remotely operated electric gates, which would have cost considerably less than the legal proceedings between the parties. He took the view that parties to neighbour disputes need saving from themselves. It no longer sufficed to give them an opportunity to mediate and to warn of the costs consequences if they wasted the opportunity; the court should stay legal proceedings for a short defined period and direct the parties to mediation.
Turning to the matter in hand, the judge rejected the argument that the right to hang and close a gate is not capable of being an easement. If rights to hang a clothes line (Drewett v Towler (1832) 3 B&Ad 735) or to overhang a bowsprit (Suffield v Brown (1864) 4 DeGJ&Sm 185) are capable of being easements, there was no reason why the right to occupy airspace by hanging a gate over a driveway should not qualify as well. The right can be acquired by grant, or prescription, or as a result of a proprietary estoppel, but does not necessarily mean that other users must close the gate behind them. The right to close a gate benefits the dominant tenement, even if the gate can be opened, and can be left open, by others.
The judge decided that the owners of the dominant land had acquired the right to install and close the gate as a result of a proprietary estoppel, on condition that they did not substantially interfere with the reasonable use and enjoyment of the driveway. This was to be judged by reference to the needs of reasonable owners when the rights were created and not by reference to the characteristics of the respective owners when the dispute arose. The law expects neighbours to behave reasonably towards one another and rights must be reasonably exercised and accommodated.
Where did this leave the parties here? The judge ruled that the way in which the right was exercised was not to be determined by the personal need of one party for security, or by the other’s need of freedom to come and go at all hours. In the judge’s view, it would not be a substantial interference with the rights of the owners of the driveway if the gates were closed from 11.00pm until 7.30am, or when there was a heightened risk of intrusion.
Allyson Colby is a property law consultant
