The High Court has recently considered this issue and Darren Millis, Commercial Property Partner, summarises the lessons of Kingsgate Development Projects Limited v Jordan and another (2017) EWHC 343 (“Kingsgate”).
It is a well-rehearsed line of thought that where an individual has a right of way over third party land, if the third party landowner then erects a gate then this equates to an automatic actionable interference with the right of way. This is simply not the case.
The High Court had already considered the point in B&Q Plc v Liverpool & Lancashire Properties Limited (2000) EWHC 463. Where there is a specific right of way the original parties will have agreed the extent of the right at the time of grant. It is not in the landowner’s power to argue that what the beneficiary of the right of way may be left with after some alteration to the right of way is somehow “reasonable” or satisfactory, the beneficiary of the right has to be able to exercise the right satisfactorily and practically as was originally intended or as she had always done.
The installation of a gate on a right of way is not therefore necessarily an interference with a right of way. The question is more one of whether the gate substantially interferes with the use by the beneficiary of the right in the individual context.
The High Court applied this principle in Kingsgate and held that where there was a right of way which already contained two gates for the beneficiary of the right of way to go through, then the erection of a third gate (the third within 100 metres) was an actionable interference – a cumulative effect that the court was unwilling to ignore. Ease of access in traversing the gates is also a factor that the court will consider.
Practically, the one lesson we learn from Kingsgate is that interference with rights of way will remain an area of dispute because each situation is different!