Can a third party interfere with my right of access/right of way?

June 13, 2016

From time to time property disputes do arise. In my opinion, those relating to access or the interference with access to lands are the most common. The drive to protect one’s lands and to limit access to them can often cause disputes with neighbouring owners.

This article focuses on the ability to limit access using a security gate.

The question then arises whether or not a locked gate with a key-code access amounts to an actionable interference with a neighbouring party’s right of way over a portion of the land, access to which is controlled by the security gate.

From the average person’s point of view, any wrongful interference with a right of way constitutes a nuisance. It is clear however that as a right of way does not entitle the grantee to the exclusive use of the land over which the right of way exists, not every obstruction of the right of way amounts to an unlawful interference and no claim will lie unless there is a substantial interference with the same.

In B&Q plc v Liverpool  and Lancashire Properties Ltd [2001]  1  EGLR 92  the  Court  held  that  the  test  of  an  actionable interference is not whether, what the grantee is left with is reasonable, but whether his insistence on being able to continue with the use of the whole of what he contracted for is reasonable.

As to the blocking of the right of way per se, consideration was given to the point relatively recently in The Sisters  of the Sacred  Heart  of Mary  Ltd v Kingston  BC [2008] All ER (D) 209 (Mar). There the Plaintiffs operated three schools and a training centre from premises situated adjacent to a private road, George Road, which was accessed from the east of another private road, Warren Road. The Defendant Local Authority sought to control entry to Warren Road by an unmanned code-operated barrier. The road provided access from a public road to what was known as the ‘Coombe Estate’. The proposal was supported by the local residents’ association, but was opposed by the Plaintiffs.

The Plaintiffs applied for an injunction which sought to restrain the implementation of the code-operated barrier. They contended that implementation of the authority’s proposal would amount to a substantial  interference with the rights of way created by s. 11(1) of the Maidens and Coombe  Urban District Council Act 1933, and objected to the imposition of a coded barrier on the grounds that it would be impractical and would have resulted in a ‘logistical nightmare’. The Defendant argued that it was entitled to introduce the proposed barrier by reason of its management and control powers pursuant to 1933 Act.

The main heads of objection to the barrier were as follows;

  1. Unannounced visitors.
  2. Unexpected events.
  3. Out of normal hours use.
  4. Future use.
  5. General contractors and deliverymen.
  6. Blocking and delay at the barrier.
  7. Cost.
  8. Hierarchy of control.

The complainant was successful in preventing the restriction to the access; however caution should be exercised in applying the case to any claim involving access to a single property or residential dwelling. The Court specifically noted that the sheer volume of traffic with different jobs/intentions to the complainant’s property meant that such a restriction had to be differentiated from a situation involving a residential dwelling wherein the provision of the access code would limit the potential interference to the right of way.

Obviously not all of the heads of objection will apply to any given scenario but there can be no doubt that the installation of a security gate with key code will touch on the majority of the heads of complaint above.

The lesson to be learnt is that each case and its facts must be assessed on a case by case basis with reference to how substantial the interference with the right of way actually is.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Dispute Resolution Team at Cleaver Fulton Rankin for further advice or information.