I am regularly asked to advise on the subject of gates on rights of way. Usually the situation is that Mr Smith, the owner of land over which Mr Jones’ right of way runs, decides to erect, or does in fact erect a gate on the right of way. Sometimes it is locked, or an electronic gate. Sometimes keys are an electronic fob are offered or provided, sometimes they are not. Can such gates be erected in the face of protest from Mr Jones?
The test is one of convenience and not necessity
Courts will grant an injunction where there has been a “substantial interference” with a right of way. But what is the test for whether something constitutes a substantial interference?
in B&Q PLC v Liverpool and Lancashire Properties Limited, Blackburne J described it as follows:
“the test…is one of convenience and not necessity or reasonable necessity. Provided that what the grantee is insisting on is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?”
Whilst one’s initial impression might be that this test means that the erection of any gate across a right of way would constitute a substantial interference, the reality is that courts often approach the question in a slightly less rigorous way.
Factors which may be taken into account include:
- whether any gate has previously existed on the right of way (or did so at the date of grant) – a replacement gate may be considered unobjectionable, whereas a wholly new gate will be considered more critically.
- whether the gate will be locked and how Mr Jones will be able to gain access through it in that event, i.e. by the provision of a key or keys, or an access code – the more difficult the access in practice, the more of an interference the gate represents.
- the extent to which a gate might be considered reasonably necessary for the purposes of safety (small children playing) or security (a spate of burglaries locally) – whilst these factors do not make a gate less of an interference per se, they make the court less likely to exercise its discretion in favour of making an injunction.
- how regularly the right of way is or is likely to be exercised – the more infrequently, the less interference a gate represents.
- the ease of access for Mr Jones and his visitors – can people delivering letters and parcels still get easy access?
- whether the reason for erecting the gate is motivated by malice or the desire to be awkward – courts will be more willing to make an injunction in such circumstances
So, while the court will take into account all of the relevant circumstances in deciding to make an injunction, the overriding question remains whether the presence of the gate in question will make Mr Jones’ use of the right of way less convenient that it was previously, or has been to date. As a general rule, Mr Smith will not be permitted to erect a gate or gates across a right of way unless he both has a good reason for doing so, and Mr Jones will not be unduly inconvenienced by the presence of such gate(s).