The interference with a right of way (via obstruction) can be of incredible nuisance and annoyance to someone who relies on that right of way for access to property or land. The problem is even more acute in built up areas where there may be no other means of access, no alternative route and no possibility of manoeuvring around the obstruction. Where the person responsible for the obstruction is not willing to respect the right of way, and is not willing to take steps to remove or prevent the obstruction, then recourse to the courts becomes an unfortunate necessity.
In bringing a claim for actionable interference the Claimant needs to show that there has been substantial interference with his/her right, and that, as a result his/her right cannot be ‘substantially and practically exercised as conveniently’ as before the interference. This test can be broken into a number of parts.
First the Claimant must show that a right of way exists over the servient tenement in the terms that he requires. This is normally an exercise of interpretation; the court will review the relevant documents which record the creation of the easement (i.e. the deed of gift) and determine the nature of the right (i.e. its width and route, and whether it is for vehicles or pedestrians). Next it must be demonstrated that the right has been substantially interfered with. West v Sharp (1999) is authority for the principle that an interference which still allows the dominant tenement to substantially and practically exercise its’ rights as conveniently as before will not be actionable. A small bollard on the edge of a 20-metre-wide track is therefore unlikely to be actionable. The erection of a gate, or the parking of a vehicle, across a vehicular right of way will, usually, however be actionable as the interference prevents vehicles passing conveniently. Finally, it must be shown beyond reasonable doubt that the Defendant is responsible for, or in control of the obstruction. This last part recently tripped up a Claimant’s case that I was observing and can be tricky to demonstrate if a Defendant denies ownership or control and there are no obvious identifying marks on the obstruction, or recorded evidence of the Defendant installing the obstruction. It is therefore advisable for Claimants to collect as much evidence of the Defendant interacting with the obstruction(s) as possible prior to bringing proceedings.
If the Claimant is able to prove his/her case then the court has a choice of remedies available. Lea v Ward (2017) demonstrated the fact that damages can be nominal (£5 in that instance) as their purpose is compensatory not punitive. Claimants will often, therefore, reach for injunctive relief requiring the Defendant to remove the obstruction(s) or keep the right of way clear. This is the clearest route to restoring full use of the right of way to the Claimant but it should be borne in mind that an injunction is a discretionary remedy, and not one that will be granted in a case where damages are adequate.