Kingsgate Development Projects Ltd v Jordan & Anor

An actionable interference with a private right of way must be substantial. The question is whether the way can be used substantially as conveniently as when it was granted, assessed by comparing the present arrangement with the original position. A gate is not necessarily an interference. An electronic gate may be acceptable where it is readily operated and does not materially impede use. The court must assess the actual operation of the gate, the dimensions and route of the way, the vehicles reasonably contemplated by the grant, and the evidence of practical obstruction. Multiple gates over a short distance may nevertheless constitute substantial interference.

The claimant owned Kingsgate Farm and enjoyed an express right of way over land belonging to the defendants. It alleged that the defendants had reduced or interfered with the route by gates, fencing and other obstructions. The defendants disputed the extent of the right of way and counterclaimed concerning the boundary and the removal of a gate.

The court determined the boundary and the route and extent of the right of way. It then considered whether the various gates and alleged restrictions substantially interfered with its use, and whether the claimant had proved recoverable loss.

1. Boundary and route. The boundary was declared to run 27 feet from the line of the old hedge, as represented on the agreed Rev C plan. The right of way was declared to follow the route and extent shown shaded blue on that plan.
2. Applicable test. An actionable interference with a private right of way must be substantial. The relevant questions were whether the way had been reduced, including by narrowing or relocation, and whether it could still be used substantially as conveniently as when granted.
3. Gates and obstructions. The narrowing caused by Gate no. 1 did not substantially interfere because the gate was wider than the narrowest part of the right of way. Its electrically operated mechanism required only the press of a button and was more convenient than a manual gate. The court distinguished the circumstances considered in Page v Convoy Investments [2015] EWCA Civ 1061, where access depended on a fob or code.
4. The presence of Gate no. 3, which was unlocked, was not itself substantial interference. However, Gate no. 2 caused substantial interference because it created three gates within less than 100 metres. The defendants were ordered to remove it. The restriction at Bend C was also to be remedied by injunction.
5. The claimant failed to prove its alleged special losses. It recovered nominal damages of £1 only. The defendants recovered £300 for the tortious removal of their gate. After set-off, the claimant was ordered to pay £299 plus interest to be assessed.