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.
