Author: Adam Baker
Landowners whose property is subject to rights of way, either for the benefit of owners of adjoining land or for their own occupational tenants, will often want to manage the land over which the rights are exercised. In particular, there may be good reasons to install security measures, such as gates or bollards, to ensure unwanted use of the property is kept to a minimum.
The tenants and adjoining owners who benefit from such rights of way will of course mostly be concerned about being able to exercise them as freely and conveniently as possible, within the parameters of the wording of the rights. However, in the absence of very detailed wording, where does the balance lie between the beneficiary’s convenience and the landowner’s legitimate right to manage its estate?
The recent High Court case of Kingsgate Development Projects Ltd v Jordan and Another  EWHC 343 (TCC) has highlighted that, while landowners do enjoy a degree of flexibility in managing the exercise of rights of way over their land, there are inherent risks in not being able to come to a clear agreement with the beneficiaries of rights of way as to the use they are to be put to.
The case concerned a Mr and Mrs Jordan (the Jordans) who purchased a property, Ferndown, in 2012. A track to the edge of Ferndown (the Track) was subject to an express right of way in favour of a neighbouring farm, Kingsgate Farm.
When the Jordans purchased Ferndown there was an electric gate at the entrance to the Track from the main road, and further along the track there was a second (non-electric) gate that was left unlocked. The Jordans subsequently removed some existing obstructions from parts of the Track but installed a third (non-electric) gate at a bend in the Track. This third gate was left unlocked.
Kingsgate Farm was purchased by the claimants, Kingsgate Development Projects Limited (Kingsgate), in 2014. Kingsgate claimed that their right of way had been interfered with substantially by alterations to the Track and the gates such that it was unsuitable for its intended use.
There was no disagreement that the presence of a gate or gates did not necessarily constitute an interference with the right of way. The question was what gates could be installed before the right of way was interfered with to such a degree that it was breached.
In this case, it was decided that only the installation by the Jordans of a third gate over a length of the Track of less than 100 metres constituted a substantial interference with the right of way enjoyed by Kingsgate Farm. The presence of the existing gates did not cause any such interference to Kingsgate.
The principle that was upheld was that there can be no substantial interference with an express right of way if the right of way can still be practically and substantially exercised as conveniently as before despite any obstruction, for example a gate. The question that courts should consider will be not whether the beneficiary of the right of way is left with a reasonable right, but whether insisting on an unrestricted right of way is reasonable. The burden is therefore on the beneficiary to show it is reasonable to insist on a right of way without the relevant obstruction.
Landowners can therefore take comfort that the courts have again upheld their ability to install gates, even more than one in relatively close proximity, without necessarily interfering with an express right of way. However, it highlights that, in order to avoid disputes, wherever possible grants of express easements in transfers or leases should clearly include any limitations as to the times or manner in which the right may be exercised and any ability of the property owner or landlord to impose reasonable security measures.
Adam Baker, Associate, Fladgate LLP (firstname.lastname@example.org)