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21st July 2017

One Gate Too Many

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In the recent case of Kingsgate Development Projects Ltd v Jordan and Another (2017) EWHC (TCC) 343, the court had to settle a number of issues in dispute between the parties including how far if at all, three gates constituted a substantial interference to the claimant’s right of way. 
In an earlier case of Page v Conroy Investments 2015 EWCA Civ 1061, the Court of Appeal had made clear that a decision to replace wooden gates which were habitually left open with electronic gates which could only be operated with a fob amounted to a substantial interference to Mr Page’s right of way.

The defendants, Mr and Mrs Jordan, had bought their property, Ferndown, near Great Missenden in Buckinghamshire as a home in 2012.  The claimant company owned Kingsgate Farm, a disused poultry farm.  Both parties agreed that Kingsgate had a right of way over the Jordans’ land by virtue of a conveyance dated 12 September 1960. However their disagreement related to the boundary between their respective properties with Kingsgate claiming ownership of a strip of land dividing the two areas of land. Kingsgate also claimed that the Jordans had reduced the width of its right of way and interfered with its use.

The trial went ahead under the Courts Shorter and Flexible Trials Scheme. This limits the documents before the court to those that each party relies upon and those requested by the other side. Both parties appointed chartered land surveyors as expert witnesses.  By the end of the trial the experts had agreed on a plan which plotted the route of the original right of way from a 1961 aerial photograph. Further evidence came from the written statement of a former owner of Ferndown, a Mr James who had worked on the poultry farm and purchased the property in 1965. Mr James, now 93, provided a statement as to the true boundary between the two properties being “ 27 feet from a hedge that was in situ…” Despite Mr James being too frail to attend court, the judge gave his evidence considerable weight. She found that the legal boundary line to be in accordance with this statement and was consistent with the route plotted by the experts. Thus the right of way fell entirely within the Jordans’ land.

The judge then considered the three gates along the right of way. The judge accepted that the first gate leading from the main road had narrowed the right of way to 4.5m. However she did not regard this reduction nor the gate itself as constituting substantial interference since the gate was not locked and opened electrically with the push of a button. Similarly gate 3 which was not locked and separated farmland from domestic property was found not to amount to a substantial interference with Kingsgate’s right of way. However the judge ordered gate 2 which the Jordans had installed themselves to be removed on the basis that three gates over less than 100m was a substantial interference with Kingsgate’s right of way.

It seems therefore that the test of substantial interference will depend on the type of gate with gates requiring a code or a fob more likely to denote substantial interference and also the proximity of gates to each other.

Points to note:

Those exercising rights of way over land they don’t own will wish to monitor any change to ensure their rights are not infringed.

Conversely owners of land subject to rights of way will wish to ensure the retention of all photographic and documentary records regarding the location and extent of the right of way.

For further information, please contact Barbara Judkins on 01223 447432 or click here to email Barbara.