Substantial interference with rights of way: solved by the push of a button?

On 2nd March 2017, the High Court handed down judgment in Kingsgate Development Projects Limited v  Jordan [2017] EWHC 343 (TCC) which amongst other things, considered how the presence of gates can amount to a substantial interference with a private right of way and the difference between electric gates operated by key and those which open by the push of a button.

History

In July 2012, Mr and Mrs Jordan (‘the Jordans’) purchased Ferndown at Lee Gate, Great Missenden. Adjacent to their property is Kingsgate Farm which had been owned by Kingsgate since 2014. There was no dispute that Kingsgate had the benefit of a right of way over a track on the Jordans’ land granted by a conveyance dated 12 September 1960 (‘the Track’). The dispute concerned whether the Jordans has reduced that right of way or interfered with its use. Kingsgate brought a claim for damages, an injunction to restrain interference with the right of way and a declaration as to the ambit of the right.

Aerial photographs showed that, at the time of the creation of the right in the 1960’s, the Track crossed open countryside and was entirely unenclosed by fence or gate. By the time the Jordans’ purchased Ferndown in 2012 there were two gates in place, an electric gate at the entrance to the Track off the main road (‘Gate 1’) and a further gate further up the Track (‘Gate 2’). Since purchasing Ferndown, the Jordans had installed a third gate in between the two existing gates and this gate was left unlocked (‘Gate 3’).

A dispute arose over the location of a boundary between the properties and the route/extent of the right of way over the Track. In relation to the right of way, Kingsgate claimed that the right had been substantially reduced to a point where it was no longer fit for its intended use as a result of the Jordans:

a) Operating an electric gate at the entrance to the track which is too narrow and encroaches upon the right of way (Gate 1)

b) Reducing the right of way by extending the garden into the Track and thereafter allowing it to continue to interfere with the right of way.

c) Positioning a gate at the entrance to the Kingsgate’s land that restricts certain vehicular access to the Track (Gate 3)

Although not pleaded, the agreed list of issues to be tried also included whether the right of way could be used as conveniently as before as a result of the installation of the three sets of gates.

After hearing the evidence, Jefford J concluded as follows to the claim relating to interference with the right of way:

a) Gate 1 is left unlocked and is easily opened by the push of a button. Although there was merit to the argument in principle, there was no evidence that the gate’s presence caused the nearby highway to be blocked up whilst vehicles waited for it to open. On the contrary, Gate 1 has the positive effect of slowing vehicles entering the Track and is not therefore an interference with the right of way.

b) There was no evidence that the presence of Gate 3 substantially interfered with the right of way and/or that the right could not be used as conveniently as when granted. The gate is left unlocked and simply separates farmland from domestic property.

c) As to Gate 2, this was the only gate out of the three which was difficult to justify. The presence of Gate 2 resulted in three gates over the course of less than 100m and that gate did therefore amount to a substantial interference with the right of way.

Amongst other things, Jefford J ordered the removal of Gate 2 and the payment of £299 plus interest in damages.

Comment

The first interesting point to arise from this decision is that the trial took place under the Shorter and Flexible Trials pilot scheme. The scheme was introduced in October 2015 and aims to achieve ‘shorter and earlier trials for business related litigation at a proportionate cost.’ The procedure for the new scheme is set out in Practice Direction 51N which sets down a quick timetable (relative to the normal course of litigation) that aims to have a trial within around 10 months from the date of issue and a judgment within 6 weeks of that trial.

Jefford J commented at the outset of her judgment that use of this scheme meant that disclosure had been limited to those documents relied upon and requested by the other side and that a parties were only required to put their case in cross examination and need not challenge all of the disputed evidence. She went on to note that she he had borne these points in mind but it is not clear what, if any, effect that had upon her decision.

Turning back to the substance of the decision, it has long been accepted that the simple presence of a gate will not necessarily amount to a substantial interference in itself and a court needs to consider whether it does in reality interfere with the right of way (Pettey v Parsons [1914] 2 Ch 662).

Interestingly, Jefford J placed considerable weight on the presence of the three gates in short succession of one another and it was this proximity that amounted to a substantial interference, not the mere presence of the gates itself. As a result, only Gate 2 was ordered to be removed which increased the distance between the two remaining gates.

The judgment reiterated the obvious need of being able to provide examples of when a right had been interfered with. It was not sufficient here to show that in theory Gate 1 could cause an obstruction to the nearby highway by requiring larger vehicles to stop and block up the road whilst Gate 1 opened. Although this argument had merit in principle, there was simply no evidence to suggest that this had ever been a problem.

Electric gates have often been distinguished from manual gates when considering whether they amount to a substantial interference due to the fact that they tend to be more convenient than manual equivalents. However, the court went further here and distinguished electric gates that required the entry of a code of the use of a fob from those which simply require the push of a button to open.

In Page v Conway Investments [2015] EWCA Civ 1061, the Court of Appeal concluded that gates which could only be operated by code or fob would likely constitute a substantial interference as ‘fobs get lost or dropped…codes are forgotten and periodically changed, visitors may not have been given a fob or may not know whether to ask for one.’

However, the gates installed here were operated by the simple push of a button and were therefore easier to operate than those operated by code or fob. As a result, they were held not to amount to a substantial interference with the right of way.

It appears that the moral of this story is that if gates are intended to be installed then the use of a simple button entry may avoid an expensive argument with the neighbors at a later date.