Push the button – actionable interference with a right of way

Installing a gate across the route of a right of way is always an interference but when does it become an actionable interference? The answer is that it all depends upon how easy it is for the person with the benefit of the right to continue to use the right of way as originally granted.

In a recent case, Kingsgate Development Projects Limited v  Jordan [2017], Kingsgate alleged that the presence of three gates at various points along the route of a right of way was a substantial interference.  The interference was only that the three gates had to be opened and then closed again.

The first gate narrowed the original right of way but it was still considerably wider than the narrowest part of the track. It was not kept locked but it was electronically operated by a push button.  It was held that this was not a substantial interference.  The third gate separated farmland from domestic property and was not locked and it was also held not to be an actionable interference.  However, it was decided that the middle gate could not be justified in the context of there being three gates within a 100 metre stretch and this was held to be a substantial interference and the court ordered its removal.

The test that the court applied is the “conveniently as before” test; in other words, whether the right or easement can be used substantially as conveniently as when it was originally granted. Although the first gate was held to be acceptable, the authors of the leading textbook, “Gale on Easements”, tend to think that even when an owner is provided with a key or a fob to open an electronically operated gate, it will fall foul of the test, as “fobs get lost…codes are forgotten and periodically changed…”.  The court in this case must have concluded that a simple push button was more convenient than physically having to open the gate.

 

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Roderick Campbell

Partner, Head of Commercial Property

Roderick has specialised in property law for 30 years. He trained with Hart Brown, qualifying in 1985 and became a Partner in 1990. He specialises...

Partner, Head of Commercial Property

Roderick Campbell

Roderick has specialised in property law for 30 years. He trained with Hart Brown, qualifying in 1985 and became a Partner in 1990.

He specialises in all aspects of non-contentious commercial property work including freehold and leasehold acquisitions and disposals; residential development work; options; conditional contracts, development agreements and land promotion agreements. He acts for a broad range of clients including property companies, developers, owner/occupiers and SMEs.

Hart Brown is recognised in the Legal 500 for real estate work in the South East and the entry states “Roderick Campbell provides “practical and pragmatic advice” and is a “first class” communicator.”

In 2008 he published a book on “Methods of Securing Development Land Overage”. He also holds an LLM Masters Degree in Advanced Commercial Property Law with distinction.

He is a member of the Law Society Property Group and LawNet Commercial Property Group.

His most memorable case was acting for a landowner on the grant of an Option Agreement concerning an M25 service area which lasted for some 12 years between exchange and completion!

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