Siggery & Anor v Bell & Ors

A servient owner may not erect barriers which substantially interfere with the convenient exercise of a right of way. The comparison is between the practical use of the way before and after the obstruction. Artificial barriers must be distinguished from naturally occurring vegetation which the dominant owner may remove. Where access to land benefiting from a right of way is concerned, the court must consider the position as a whole, including reasonable opportunities to access different parts of the land. A boundary owner has no absolute right to fence where the boundary coincides with the right of way. The cost or inconvenience of removing a fence will not outweigh the dominant owner’s right where the obstruction materially derogates from the grant.

The claimants owned woodland adjoining a trackway over which they had a prescriptive right of way on foot and with vehicles. The defendants acquired part of the trackway and erected fences across its ends, later proposing either four lockable gates or two unล็ocked farm gates. The claimants accepted the two-gate arrangement only if part of a northern boundary fence was removed, so that they could enter their land without passing through both gates. The central issue was whether the proposed gates and retained fencing substantially interfered with the convenient exercise of the right of way.

1. Four-gate solution. The applicable question was whether the right of way could still be substantially and practically exercised as conveniently as before. The relevant comparison was with a right of way usable without artificial barriers, not with the condition of an overgrown track. Four gates within 50 metres would require repeated stopping, opening, passing through and closing, and would therefore constitute actionable interference.
2. Access to the dominant land. A right of way benefiting land ordinarily benefits the whole of that land and each part. The owner may in principle choose from which part of the land to access the way, subject to reasonable access. The principles discussed in Pettey v Parsons and Cooke v Ingram supported an assessment of whether the proposed access derogated from the grant.
3. Two-gate solution. The court had to consider the position as a whole, including whether the claimants would need to pass through two gates to reach their land or could pass through one gate and use an opening in the northern fence. The defendants’ ownership boundary did not give them an absolute right to fence it. The expenditure on the fence was insufficiently weighty to justify retaining it.
4. The two-gate solution also amounted to actionable interference unless the relevant portion of the northern fence was demolished. The gates could remain, but the fence adjoining the back garden of number 31 and a small part of number 33 was ordered to be removed.