Not every interference with a right of way is actionable. There must be a substantial interference with the enjoyment of it. So there will be no actionable interference with a right of way if it can be substantially and practically exercised as conveniently as it has been previously: B&Q PLC v Liverpool and Lancashire Properties Ltd (2001) 81 P&CR 20; [2000] EGCS 101.
In Kingsgate Development Projects Ltd v Jordan [2017] EWHC 343 (TCC); [2017] PLSCS 65 the court was asked to decide whether the owners of land, which was subject to a right of way, had made changes along its length that interfered with the use of it. The users complained, in particular, that the owners of the servient land were operating electric gates that encroached upon the right of way because they were too narrow. In addition, they had installed a third gate along the length of the right way, which interfered with the use of it.
The judge noted that the electric gates were as wide as the narrowest point of the right of way. It was that width that determined the size of vehicle that could use the track – and any vehicle that could pass through the narrowest point on the right of way would also be able to pass through the electric gates. So, although the gates had reduced the width of the right of way at one point, they did not substantially interfere with the use of it.
Previous case law suggests that the erection of numerous gates over a short distance might be regarded as a substantial interference with a right of way. However, the installation of a single gate is less likely to be actionable. Locking a gate across a right of way might be considered a substantial interference with it. But the installation of an unlocked gate, or the installation of a locked gate, to which the dominant owner has a key, is less likely to be regarded as a substantial interference.
The electric gates were not locked and it was not the case that they needed to be operated with a fob or code (which might be lost or forgotten). They opened electrically at the push of a button and were, therefore, easier to open than a manually operated gate where a handle or latch had to be operated and the gate then moved manually. In addition, the gates closed automatically (unless they were obstructed).
Had they been manually operated gates, the judge indicated that he would not have found them to be a substantial interference with the right of way – and, because they were more convenient than manual gates, he ruled that they did not constitute a substantial interference with the right of way.
However, the installation of the new gate was more difficult to justify because it meant that there were three gates over a length of less than 100m. The judge found that this constituted a substantial interference with the right of way and ordered that the gate be removed.
Allyson Colby is a property law consultant
