England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		3 July 2007

1. MR JUSTICE LEWISON: At the rear of Top Cross Road in Bexhill-on-Sea in East Sussex there is a trackway. It connects Buckholt Avenue to the west and Filsham Drive to the east. To the south of the trackway at numbers 31, 33 and 35 Top Cross Road live the defendants in this case. To the north of the trackway the claimants own a parcel of woodland which abuts the trackway. The trackway is, as I find, a little less than 13 feet wide along the whole of its length.
2. The claimants are entitled to a right of way, acquired by prescription, both on foot and with vehicles, over the whole of the trackway. Until the early part of 2005 there were no artificial barriers which blocked access along the track. The track may well have been overgrown with weeds and shrubs and so there has been little actual use of the track in latter years. However, there has been sufficient use over the past 20 years or more to give rise to a right of way, which all parties recognised as having been established. In addition, Mrs Siggery, who gave evidence before me and whose evidence in this respect was not challenged, said there was an access into the claimant's land, which is woodland, by means of an easily removable single wire along part of the land where it abuts the trackway immediately to the north of the back garden of number 31. The fact that there has been little use of the trackway in recent years, or even no use at all, does not of course mean that the right of way has been in any way diminished or abandoned, but the fact of the nonuse may have relevance to the question of substantial interference, which I will deal with in due course.
3. Towards the end of 2004 the defendants bought those parts of the trackway which lay immediately to the north of their respective back gardens. They had no knowledge of the existence of any right of way, which for some reason had not been noted at Her Majesty's Land Registry against the title to the trackway. Still, as I understand it, in ignorance of the existence of the right of way, in early 2005 two fences were put up, one along the boundary between numbers 31 and 29 and the other along the boundary between number 35 and Filsham Drive. Those were solid fences spanning the whole of the 50-metre length of track which between them the defendants had bought.
4. The reasons given by the defendants for having acquired this portion of trackway was to prevent its use by joyriders and to prevent antisocial behaviour. Only two instances of either joyriders or antisocial behaviour have been established on the evidence as having taken place within the last five years or so. I accept that the defendants' fears were genuine, but I cannot help thinking that they were much exaggerated.
5. The claimants objected to the erection of the two fence panels and after some time the defendants conceded that the claimants were indeed entitled to a right of way. Once the right of way was established the claimants called on the defendants to remove the obstructions to the right of way. The defendants offered what has been called the four gate solution. That offer was made in a letter of 30 June 2006. In effect what was proposed was a gate at each end of the 50-metre strip and two intervening gates, one between numbers 31 and 33 and the other between numbers 33 and 35. Each of the proposed gates was a solid gate, each was to be lockable, but the claimants were to be provided with a key. The four gate solution was the solution which the defendants maintained for the next year or thereabouts. The claimants' position at the time was that all obstructions ought to be removed.
6. The first question I think I should address is whether the four gate solution, if persisted in, would have amounted to a substantial interference with the claimants' right of way. The test is that set out in the judgment of Blackburne J in B & Q Plc v Liverpool and Lancashire Properties Limited [2001] 1 EGLR 92. The question is whether the interference with the use of the right of way has been substantial and the way to answer that question is to ask whether the right of way can be substantially and practically exercised as conveniently as before.
7. It is, however, necessary to identify what the before and after positions are. Mr Cutting, who appears for the defendants, has submitted that the before position was that there was an overgrown and almost impassable track which was difficult to use. Afterwards the surface of the track had been cleared and there would have been no greater difficulty in going through the four gates than there would have been in attempting to drive along the overgrown and unimproved track. But, in my judgment, there is a very significant difference between the existence of vegetation which the person entitled to the right of way is entitled to remove, on the one hand, and artificial barriers erected by the owner of the soil, on the other. The true position, so far as the before position is concerned, is, as it seems to me, that there was a right of way for vehicles exercisable without the need to negotiate artificial barriers. Afterwards there was a need, or would have been a need, to go through four gates.
8. It does not take much imagination to realise that having to pass through four gates within the space of 50 metres does represent a significant inconvenience. At each gate one would have to stop the vehicle, get out, open the gate, drive through it, stop the vehicle, shut the gate, move to the next one, get out, open the gate, drive through, shut the gate, and so on. Mr Smart, who also gave evidence, very fairly conceded that that situation was far less convenient than the position beforehand. In my judgment, therefore, it is clear that the four gate solution would have amounted to an actionable interference with the right of way.
9. The current position, however, is that the defendants have taken down the two intermediate gates and have proposed what has been called the two gate solution. The two gate solution consists of two five-bar gates in the style of farm gates, one at each end of the 50-metre strip. They are to be latched but not locked. The claimants are content with the two gate solution provided that a section of fencing which lines the northern edge of the trackway is removed. The reason why they say that the fencing on the northern extremity of the trackway ought to be removed is so that they can gain access from the trackway to their land without having to go through both of the gates proposed as part of the two gate solution. Thus, if they approach from the eastern end of the track from Filsham Drive they will have to go through only one gate and then they will be able to turn right onto their own land.
10. The fence along the northern extremity of the trackway has, as things have turned out, little if any practical purpose. Mr Smart told me in evidence that the defendants now propose to re-fence their gardens along the southern edge of the trackway, thus reinstating the position to what it was before this dispute began. There is no practical reason that I can see for the northern fence to be retained, at least where it abuts the back gardens of number 31 and a small portion of the back garden of number 33. But if the defendants are entitled to fence the northern boundary of the track along the whole of the part where it abuts the claimants' land, then of course there is nothing that I can do to compel them to remove it. The stretch of fence in question is approximately 36 feet long, perhaps a little bit more. Mr Cutting points out that the claimant's land stretches for a considerable way along the track and that, as he puts it, in the general scheme of things the fence does not deprive the claimants of access to their land. All they have to do is to go through the two gates and then they can have access to any part of their own woodland.
11. A right of way benefits a piece of land and in the general run of things where a right of way benefits a piece of land it benefits the whole of the land and each part of the land. In principle, therefore, this means that the owner of the land with the benefit of a right of way is entitled to choose from which part of his land to access the way.
12. The question was considered by the Court of Appeal in Pettey v Parsons [1914] 2 Ch 653. Lord Cozens-Hardy, the Master of the Rolls, referred to an earlier case called Cooke v Ingram in which Wright J pointed out that in that case there was nothing which expressly limited the grantee of the right to one line of access or to access only at the points where his land actually adjoined the new way. That was a case in which it was proposed to erect a fence along the line of a private right of way but the owner of the way had offered to put up a gate in the fence that was proposed to be erected. That offer was held to be a reasonable one to which the owner entitled to the right of way could not reasonably object. Swinfen Eady LJ said at page 667:

"The other question refers to fencing the side of the little triangular piece of land. It is a question of construction in a deed granting a right of way whether the way that is granted is a way so that the grantee may open gates, or means of access to the way, at any point of his frontage, or whether it is merely a way between two points, a right to pass over the road, and is limited to the modes of access to the road existing at the date of the grant. In each case it is a question of construction. Assuming in favour of the defendant that he is entitled to open new means of access to this roadway, he is not entitled to have it continuously unfenced along the whole of the line so that at every inch of the way he may pass on to it at any times he pleases."

13. Pickford LJ said at page 669:

"In the absence of authority I am certainly not disposed to accept the contention that such an obligation as that is laid upon the servient tenement. I think the obligation is that, assuming the right of access from each part of the land from which access is required to any part of the way, such access shall be given as will be reasonable. It is obviously difficult to explain, but it is an inevitable word, I think. It means such access as will give reasonable opportunity for the exercise of the right of way, or, to put it in another way, such access should be given as will not be a derogation from the grant of the right of way."

14. If it is a question of reasonableness then that is in substance the same question as whether there is an interference with the convenient exercise of the right of way. This means, in my judgment, that I must look at the position as a whole, that is to say, with the choices being either that the claimants need to pass through two gates in order to access their land from Filsham Drive or, alternatively, they have to pass through one gate and then onto their land through a gap where the fence would have been.
15. On the question of reasonableness I must also, I think, take into account the reasons why the defendants wish to maintain the fence on the northern side of the track. Those reasons are essentially twofold. The first is that it is their boundary and therefore they consider that they are entitled to fence it and, secondly, they have spent the money on buying and now erecting the fence. So far as the first of those reasons is concerned, where a boundary of ownership coincides with the boundary of a right of way then the owner does not have the absolute right to fence the boundary, it all depends on what is reasonable as regards the exercise of the right of way by the person entitled to it. As regards the second reason, it is true that some money will have been spent on the erection of the fence, but in the general scheme of things I do not consider that the cost of supply and erection of a fence is a sufficiently weighty matter. In my judgment, two gates on this right of way would be a substantial interference and the only means of saving the two gates is, in my judgment, for a portion of the northern fence to be demolished where it adjoins the back garden of number 31 and the small portion of number 33.
16. I conclude, therefore, that this is a case in which even the two gate solution as proposed by the defendants would still amount to an actionable interference with a right of way, but that the best means of removing the nuisance is for the two gates to remain in place but for that portion of the northern fence that I have described to be demolished.