The recent case of Kingsgate Development Projects Ltd (“Kingsgate”) v Jordan serves as a useful reminder that an interference with an easement is only actionable if the interference is substantial.
- Mr and Mrs Jordan purchased property by the name of Ferndown at Lee Gate, Bucks in July 2012. Next to Ferndown is Kingsgate Farm owned by Kingsgate and purchased by Kingsgate in 2014.
- Kingsgate Farm used to be a poultry farm but is now disused.
- Kingsgate has a right of way (ROW) over the Jordans’ land granted by way of a conveyance dated 12 September 1960 but a dispute arose about that ROW in April 2016.
- Kingsgate claimed that the Jordans had reduced the ROW and interfered with its use.
There are 3 gates situated along the ROW in question:
- Gate number 1 – there is a gate that is operated electronically by a “push” button and this gate is located at the entrance to the track on the ROW off the main road;
- Gate number 2 – there is an unlocked gate installed on a bend on the track on the ROW but there was no pleaded complaint about Gate 2; and
- Gate number 3 – on the south side of the track on the ROW there is a substantial fence and then a low level post and rail fence up to a gate. This gate separates what was and still is farmland from domestic property. It was not locked.
- Kingsgate claimed that the ROW had been substantially reduced rendering it unusable and that this encroached the ROW. Kingsgate alleged that deliveries to their property had been affected by the reduction in width of the ROW, large trucks were unable to turn around in the tight space and that the Jordans had challenged delivery drivers attempting to gain access to Kingsgate Farm (evidence that the Judge felt was exaggerated on the part of Kingsgate).
Can the express ROW be used substantially as conveniently as before as a consequence of the installation by the Jordans’ or their predecessors in title of 3 sets of gates?
- It can be argued that the presence of a gate is always an interference with a ROW because the person using the ROW has to open and close the gate but, as Gale on Easements states, a gate is not necessarily an interference with a ROW.
- An actionable interference with a private ROW must be substantial.
- Gate number 1 was not locked, it opens automatically by “push” button and closes automatically which, according to the Judge, is much more convenient than a manual gate. From the evidence (a diary kept by Mrs Jordan) there were lots of large vehicles travelling to Kingsgate Farm in April 2016 and no evidence adduced by Kingsgate that the gates interfered with the ROW.
- Gate number 2 is different because its installation by the Jordans’ is difficult to justify. This gate’s existence meant that there are 3 gates over a length of less than 100 metres and this was found by the Judge to be a substantial interference.
- Kingsgate were awarded nominal damages of £1.
- The Jordans’ were awarded £300 for tortious interference because a member of Kingsgate had removed Gate number 3 believing (wrongly) that the gate belonged to Kingsgate.
BEWARE of being overzealous with the amount of gates placed on private ROW a balance must be found and in this case, 3 gates over a length of 100 metres was held to be a substantial interference.
The case does bring up some interesting points on the “as conveniently as before” point particularly in relation to electric gates because fobs can be lost and electric key codes can be forgotten. WATCH THIS SPACE for future comments.