Rights of Way – an Open and Shut Case?

Property & Land Law

30 July 2018

The Facts

I acted recently in a case involving a right of way over an access running along the back of a terrace of houses and out to a public highway; my client (“D”, the Defendant) owned a house towards the “mouth” of the right of way and his neighbour (“C”, the Claimant) owned a derelict property further along the access, formerly the coach house of an adjoining property. C had owned her property for some years and had done nothing with it, her attempts to get planning permission having failed, and the previous owner of my client’s property (“X”) had erected a gate across the access many years before in order to improve the security of his, and other neighbours’ properties, as it was frequently used by local drunks and drug-users for a variety of unneighbourly activities. X erected the gate even though he did not actually own the land at the rear of his property which the gate closed across or have a formal right of way over the access himself.

It’s fair to say that relations between C and X (and most of the other neighbours) had not been good for a variety of reasons, including the gate, and there had been various threats of legal action by C to remove the gate and to restrain X (and others) from all sorts of alleged behaviour, of which my client had very little knowledge before he purchased his property. However, within a week of moving in, D received a demand from C for an “inherited debt” of £127,000 arising, it was claimed, because X’s gate had prevented C from developing and using her property and shortly thereafter C’s partner arranged for the removal of the gate (and then sought to bill D for the storage of it).

My client decided to erect a new gate in the same position as the old one and in fairly short order it was damaged by C’s partner (he was subsequently convicted of criminal damage) and C issued a claim for an injunction for the removal of the gate and preventing my D from interfering with or obstructing her right of way.

The Judge dealing with the initial hearing made an interim injunction order (my client having agreed to keep the gate locked open until the matter was resolved) and eight months later the matter came before the Court for final determination.

The Law

It is well-established that a gate can be erected across a right of way (Pettey v Parsons (1914)) and such a gate can even have a lock (Johnstone v Holdway (1963)); the question for the court is whether the gate amounts to a substantial interference with the convenient use of the right of way compared with the situation prior to the gate (or other obstruction) being erected (see B&Q v Liverpool & Lancashire Properties (2001), Siggery v Bell (2007) or Bradley v Heslin (2014)) which, in turn, is a question of fact and degree on the particular circumstances of the case.

A situation where it was proposed to have a series of either four or two gates within 50 yards has been considered to be unreasonable (Siggery), as has an arrangement which might require a user to park his or her car, get out to open the gate, drive through the gate and then get out of the car again to close the gate (Bradley), particularly if gate is so close to the highway that it creates a traffic hazard.

The Decision

In this case, C said she was unable to open the gate (although in cross-examination it became evident she had never actually tried) and that she needed regular access (again, in evidence she indicated that, at most, the property would only be used for storage and so accessed infrequently). She also had to accept, having stated when applying for the injunction that the gate was always locked, that in fact she had no evidence that it had ever been locked. She also accepted that the demand for the “inherited debt” had been sent by her partner with her knowledge and agreement, although she conceded that it was an entirely unmeritorious and spurious claim. In short, the Judge found her to be an entirely unreliable and dishonest witness.

The net result was that the Claim was dismissed and C was ordered to pay my client’s costs (of some £14,000) in addition to her own legal costs of over £46,000 (the bill was nearly twice the value of C’s property) to say nothing of the damage to C’s reputation in the light of the Judge’s assessment of her evidence!

As Norris J said in Bradley:

“Rather to my surprise I find myself trying a case about a pair of gates in Formby: surprise on at least two counts. First, that anyone should pursue a neighbour dispute to trial, where even the victor is not a winner (given the blight which a contested case casts over the future of neighbourly relations and upon the price achievable in any future sale of the property). Second, that the case should have been pursued in the High Court over three days. It is not that such cases are somehow beneath the consideration of the court. They often raise points of novelty and difficulty and are undoubtedly important to the parties and ultimately legal rights (if insisted upon) must be determined. But at what financial and community cost?”


Boundary and other neighbour disputes are almost invariably expensive, emotionally charged, time-consuming and stressful for all involved, and often both parties end up out of pocket and dissatisfied with the result: before embarking on such a claim (or when defending one) it is essential to get professional, independent, expert advice as to your prospects and the value of the case at an early stage (and thereafter) and, ideally, to consider alternatives to litigation, e.g. mediation or arbitration.

Becket Chambers provide impartial expert advice and can deal with cases under the Direct Access Scheme or via a solicitor. Contact the clerks for more information.

For help, advice or if you wish to instruct a member of Chambers, please contact our Clerking team