Can I put a gate across a private right of way?

By Graham Halsall

A private right of way (known as an “easement”) is a right to use someone else’s property as a means of access and egress. They can exist in many different forms and features in all kinds of property transactions.

Because they are exercisable over someone else’s property, easement rights of way are a frequent source of dispute and tension. The owner of the land is keen to ensure that the land is not over-used or damaged and the beneficiary of the easement is keen to ensure that the right is not interfered with.

So when the landowner wishes to put a gate across the right of way, this can often lead to disagreement.

There is no general principle of law which prevents the landowner from installing a gate. Equally, the existence of a right of way does not necessarily bar the landowner from using the land in some other way. However, the landowner cannot do anything which would amount to a “substantial interference” with the right of way.

In the recent case of Kingsgate Development Projects Ltd v Mr and Mrs Jordan, the High Court was asked to consider whether the installation of a gate across a private right of way amounted to a “substantial interference”.

In this case, Kingsgate had a right of way over a defined track crossing the adjoining land owned by Mr and Mrs Jordan. When Mr and Mr Jordan bought the property, there were two gates already on the trackway, one of which was electronically operated by the touch of a button. The Jordans subsequently added a third gate between the two existing gates. This resulted in three gates within a distance of around one hundred metres.

The Court decided that the erection of the third gate was a “substantial interference” with the private right of way and ordered its removal. The issue was not the gate itself, but the fact that its presence meant that there were three gates in close proximity.

There is also an interesting discussion in the judgment about the difference between electronic gates and gates which need to be opened manually. The Court took the view that electronic gates which can be opened by the touch of a button were easier to open than manually operated gates. No surprises there. What is interesting though is the Court’s view that the first of the three gates would have been a substantial interference, had it been a manually operated gate. This gate, which was allowed to remain, required only the press of a button and so was more convenient than manual gates.

This case does not create any new law and there is no magic answer to the question of whether gates can be installed across private rights of way. It depends on the facts and circumstances of each case. However, the decision in this case informs us that the particular mode of operating the gate is a relevant factor in assessing whether or not the gate amounts to a substantial interference .

If you have any queries regarding rights of way or similar disputes, please feel free to contact Graham Halsall, a Senior Associate in our Property Dispute Resolution Team on 01737 854 577 or email graham.halsall@morrlaw.com.

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