Can you erect a gate?

This seems like a fairly innocuous question but of course the issue is a more complex one if the gate is across an existing right of way.

May people buy property that is subject to the rights of another to cross the land being purchased. These rights should be revealed in the title investigation and enquiries carried out by a buyer's solicitor during the legal work at the time of the purchase.

Rights of way can cause problems over open land and tracks. But they can equally be an issue across the rear of terraces of houses which are accessed over neighbouring property.

For the person with the benefit of the right of way to be able to bring an action for obstruction of a private right of way, the interference or obstruction must be 'substantial'.

The main case going back as far as 1860 establishes that the interference will not be substantial if the right of way can be 'practically and substantially exercised as conveniently' as it was before.

Whether someone wants to erect a gate across an access at the rear of their property or a large gate across a drive or track, the question will always be whether this amounts to 'substantial interference' with the right of way.

A recent High Court decision reminds us that these issues do arise fairly often.

A right of way was already affected by two gates within 100m but the landowner over whose land the right was exercised then erected a third gate. The owner with the benefit of the right argued that this amounted to substantial interference. The Court held that it did but interestingly only ordered the removal of one of the gates and £299 in damages.  This very low figure was an indication of the court's attitude to the insubstantial loss that had been suffered.

Courts have considered the interference that might be caused for example by electric gates or those activated by fobs or codes.

The Court of Appeal has acknowledged that '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.' and that this could constitute substantial interference.

If a gate is operated by a simple push button however, this may not be sufficient for claimant to be successful.

If you are considering erecting a gate or structure across a right of way or you think that anyone has interfered with a right that you enjoy, contact us.

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