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Does a Gate Infringe a Right of Way?
There is no simple answer to the question of whether a gate infringes a right of way. It will, as we lawyers like to say, depend. One can clearly see many instances of situations where a right of way is, for example, impeded by a style or perhaps a kissing gate. There is a clear public right of way, and the landowner is clearly within his rights to impede the right of way, either, for example, to restrict those passing to the means of transport allowed, or to keep stock in (or out).
The analysis must start with looking at the extent of the right of way. How is the right derived, how is it defined, is it set out clearly in any plan, and how is the use element described? Often, rights are not set out in a document, but represent rights acquired over the years. The right may be limited in several ways. It may be restricted to a right of way by foot, or by foot and horse. Usually, but not necessarily always, the rights are incremental, a right for a certain level of usage will include rights by lesser means of movement. The rights may be limited in time - between certain hours of the day. They may restrict the right to certain people. Typically, private rights of way may only be exercised by the owners of specified land and their lawful visitors. Most often, a right of way will restrict the land over which the right may be exercised.
You must then look to the gate involved. How much of an impediment is it to free movement? A gate which was locked and required the user to spend ten minutes unlocking a series of padlocks, would probably be an unlawful interference. A gate which allows travellers on foot, but not cyclists, should be unlawful if cyclists should have the right to pass.
The principle legal text on such matters is 'Gale on Easements' which says:
"It has been said that no hard and fast rule emerges from the cases but that the guidance that they do afford is that, whilst the servient owner may not derogate from the grant, the dominant owner may not make unreasonable demands. What would, in a particular case, constitute a derogation from the grant and what would constitute an unreasonable demand depends on the proper construction of the grant and then on the factual circumstances."
One common difficulty is where a gate restricts the width of access. A private landowner wanting his neighbour to be unable to drive his van across his land, might install a gate which is wide enough only for cars to get through. Against, the land owner may want to build an extension over the land, allowing foot passengers (and perhaps it is a right of way by foot only), to get past. Is this an infringement? It is an important principle that a right of way is a right to cross across any part of the land over which the rights has been granted. A fence post, or extension, which prevents use of the right over a certain part of the land subject to the right, is an infringement of the right of way.
Whether there exists an infringement, is only half the battle. Courts, well judges, do not lke disputes between neighbours, and there is often a feeling that a judge will want to bang heads together. He can often do so by orders for costs.
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