Do gates across a private right of way constitute obstruction?16 June, 2014
A private right of way over land is known as an easement. The person entitled to the benefit of the easement is known as the ‘dominant owner’. If a dominant owner wishes to claim that there is an interference with their enjoyment of an easement, the dominant owner must show:
- That they are entitled to the benefit of the easement (that they have been granted rights over the land);
- The nature, extent and scope of the easement; and
- That the interference with the easement is of a substantial nature.
This article will consider the final aspect which the dominant owner must satisfy in order to be able to make a claim for damages or an injunction: that the interference is of a ‘substantial nature’.
To be deemed ‘substantial interference’ and therefore actionable, the interference does not have to be so severe as to amount to a total destruction of the right of way, but the interference should have more than a ‘trivial impact’ on the dominant owner’s enjoyment of the easement.
Case law has established that the obstruction or works carried out on the land will not amount to ‘substantial interference’ if the right of way can still be practically and substantially exercised as conveniently as it was before.
Landowners please ask yourself, will your proposed works make the enjoyment of the easement practically and substantially less convenient?
The installation of a gate across a private pedestrian right of way will not necessarily amount to actionable interference. The question to ask is whether the gate ‘substantially interferes’ with the use of the easement, for example: the erection of numerous gates over a short distance may be regarded as substantial interference, whereas the installation of only one gate is less likely to be regarded as such. Further, locking a gate which lies across a right of way may be deemed to be substantial interference. However an unlocked gate/providing the dominant owner with a key is less likely to be regarded as substantial interference.
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