Land – Right of way – Interference – Damages – Claimant having right of way over defendants’ land – Claimant claiming damages and injunctive and declaratory relief alleging defendants’ interference with right of way – Defendants counterclaiming for damages arising from removal of gate – Whether claimants’ actions amounting to substantial interference with private right of way – Claim allowed in part – Counterclaim allowed
The defendants were the freehold owners of a property known as Ferndown at Lee Gate, Great Missenden, Buckinghamshire. Adjacent to Ferndown was Kingsgate Farm which was owned by the claimant company. Having registered title, the claimant was also the registered owner of a strip of land which lay between the two properties. It was common ground that the claimant had a right of way over the defendants’ land along a track. However, disputes arose concerning the boundary between the two properties and whether the defendants had interfered with the claimant’s right of way by changing part of the route of the track, removing fences, reducing its width and installing three gates along the track. At one point the claimant removed the third gate. The defendants reinstalled a gate but changed it so that it opened onto their property.
The claimant applied to the court for declarations as to the correct boundary and route of the right of way, an injunction requiring the right of way to be restored, special damages for loss arising from additional costs incurred after it was unable to access its property and fulfil contractual orders and general damages of £5,000. The defendants counterclaimed for the cost of replacing the third gate.
Held: The claim was allowed in part. The counterclaim was allowed.
(1) The boundary shown on a plan attached to a conveyance in 1961 was for identification only so it was entirely likely that there would have been some other means of defining the boundary. An obvious way was by reference to an existing physical feature. On the evidence in the present case, the true boundary between the two properties was at a line shown 27 feet from the line of an old hedge. The court would make a declaration to that effect.
(2) The best evidence of the route and extent of the right of way was as plotted by the experts on the 1961 plan and the court would make a declaration that that was the route and extent of the right of way granted.
(3) An actionable interference with a private right of way had to be substantial. The questions for the court were whether the right of way had been reduced in the sense that the track had been narrowed or its route moved so as to affect its use; and whether it could be used substantially as conveniently as when it was originally granted, particularly if physical obstructions had been placed along its route. In the present case, there was no evidence that the track had been reduced on a bend or that large vehicles which could once have expected to pass to the claimant’s farm could no longer do so, from which it might have been inferred that the right of way had been restricted. The defendants accepted that, at a second bend, the right of way had been restricted as the track now made a sharp turn but it would be possible to change the route of the right of way so that there would no longer be any interference. The court would grant an injunction requiring the right of way to be restored at that point.
(4) The presence of the gates was an interference with the right of way in that they had to be opened and closed but that did not necessarily amount to substantial interference. The third gate separated farmland from domestic property. It was not locked and there was no evidence that it had interfered in any appreciable way with the right of way. The first gate separated the defendants’ property from the main road and had the positive effect of slowing vehicles. Whilst its width reduced the width of the track, it had not caused any substantial interference with its use. The first gate was also unlocked and opened electrically at the push of a button, which made it easier to open than a manually operated gate where a handle or latch had to be operated and the gate then moved manually. That was not a substantial interference with the right of way. However, the second gate was difficult to justify because it meant that there were three gates over a length of less than 100 metres. It constituted a substantial interference with the right of way and the court would order the second gate to be removed: Page v Convoy Investments [2015] EWCA Civ 1061 considered.
(5) The claim for special damages failed as there was no evidence to support it. Although there had been some interference with the claimant’s right of way, there was no properly pleaded claim for general damages for loss of amenity and the claimant would be awarded nominal damages only in the sum of £1. The claimant’s removal and/or destruction of the third gate was a tortious interference and the defendants were entitled to their claim for damages in the sum of £300, based on evidence as to the cost of a new gate. After set-off of the nominal damages, the claimant was required to pay to the defendants £299, plus interest to be assessed.
Andrew Noble (instructed by Wilson Davies & Co, of Harlow, Essex)) appeared for the claimant; Stephen Bishop (instructed by Horwood & James LLP, of Aylesbury) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read a transcript of Kingsgate Development Projects Ltd v Jordan and another
