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19th January 2016

Is a gate a substantial interference with a right of way?

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In the case of Page –v- Convoy Investments Limited [2015] EWCA Civ 1061, the Court of Appeal has confirmed the approach to be taken in determining whether an obstruction constitutes a substantial interference with a right of way.

The Facts

In 2000, Mr Page purchased some farmland at auction from Convoy Investments Limited’s (“Convoy”) predecessor in title. The land was purchased with the benefit of an agricultural right of way along a roadway on Convoy’s land. The roadway connected Mr Page’s land to the highway and was used by him to access his fields with large agricultural vehicles, often towing substantial equipment, for around 10 months of the year.

When Mr Page purchased the land there was a pair of old wooden gates on the roadway at the entrance to the highway. These were not used, or even usable, and remained open at all times. In 2011, Convoy installed electronic gates at the entrance to the roadway in the same position as the old wooden gates. The new gates could only be operated by the use of a fob or by entering a four digit code. Convoy offered Mr Page a fob and the code to operate the new gates but these were refused. In December 2011, Mr Page issued proceedings claiming that the gates amounted to an unlawful obstruction to his right of way.

The First Instance Decision

At first instance, the Judge applied the well known test laid down in West –v- Sharp (1999) 79 P&CR 327 that “there is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently as before the alleged obstruction”. The Judge carried out a comparison between the previous position, with no gates in use, to the current position with the electronic gates in place and held that Convoy had unlawfully interfered with Mr Page’s right of way by installing the new gates.

The Appeal

Convoy appealed and sought to argue that the Judge at first instance should have compared the position with the electronic gates in place to the position with effective manually operated gates. This was on the basis that the existence of the old gates, albeit that they were no longer usable, prevented Mr Page from objecting to the reinstatement of gates of that kind in any event.

The Court of Appeal rejected Convoy’s hypothetical argument and confirmed that the Judge had carried out the correct comparison by addressing the actual impact of the electronic gates on Mr Page’s exercise of the right of way. The fact that there had been no practicable gates in existence was therefore crucial in the Court reaching its decision. Matters may of course have been very different had manually operated gates previously been in place and in working order.

This case highlights the need to carry out a careful assessment as to whether access is likely to be materially less convenient when considering the installation of gates, or any other obstruction, on a right of way.

If you have any concerns relating to the obstruction of a right of way please contact Kate Harris on 01223 532762 or click here to email Kate. 

For more information please visit our Dispute Resolution & Litigation page.