A gate too far – When does a gate amount to an interference with a right of way?

Many land owners ask the question whether they can put a gate across their land when a third party has a right of way over that land. The answer to that question is it depends! It depends on a number of factors such as location, nature of the gates and the degree of interference erecting a gate would cause the person with the right of way over the land. Here, we look at a recent case and its implications.

A right of way could be by foot or vehicular access. Especially in relation to vehicular access there is no rule that a single unlocked gate is always ok. For example it could still be a substantial interference with a right of way if the vehicles using it are forced to stop in a dangerous position in order to open the gate.

There have been a number of cases on gates but this article focuses on the recent case of Kingsgate Development Projects Limited v Jordan [2017] EWHC 343 (TCC) which is a very useful illustration of the law. This case examines how the presence of gates can amount to a substantial interference with a private right of way and draws a useful distinction between electric gates opened by fob or code and those operate by the push of a button. The brief facts of the case are that the Jordans purchased their property in 2012. It was adjacent to Kingsgate Farm. Kingsgate Farm had a right of way over a track belonging to the Jordans. When the Jordans purchased their property in 2012 there were two gates already in situ, an electric gate at the entrance to the track just off the main road and a further gate up the track. Since purchasing the property the Jordans erected a third gate in between the two existing gates. The third gate was left unlocked.

The judge considered all three gates and found that the gate at the entrance to the track was easily opened by the push of a button and there was no evidence to suggest it caused the nearby road to be blocked whilst vehicles waited for it to be opened. On that basis it was not held to be an interference. The last gate erected in between the two existing gates was also found to be acceptable because it was left unlocked and served to separate residential property from neighbouring farmland. The gate which caused an issue was the second gate referred to above – this gate meant there were three gates in quick succession and in less than a 100m stretch over the track. The Court therefore found it did amount to a substantial interference with a right of way and the Jordans were ordered to remove it and pay a small sum in damages.

Interestingly, it appears that it was the number of gates in quick succession that caused a problem in this particular case. The erection of a third gate meant the number of gates on the track was excessive, unreasonable and perhaps installed to aggravate.

The other practical point that comes from this case is that the court considered the types of gates. Whilst it is all very dependent on the particular facts, generally speaking electric gates have often been seen as better alternatives to manual gates because they tend to be more convenient when in a car. In this case the court went further and distinguished between electric gates that have a code or the use of a fob and those which simply require you to push a button. Those operated by a simple button were less likely to be an interference with a right of way.

This case shows that if you need to install a gate across a track you own but which others have the right to use you have to give it some thought. You need to think carefully about getting their agreement and what types of gates are installed. In the vast majority of cases these issues can all be resolved very amicably but it will almost always be sensible to discuss it with them in advance of installation and take some advice.

For more information on this and other rural land issues, contact Danielle Spalding, associate on +44 117 915 4626 or email [email protected]