Disputed rights of way are a common cause of friction between rural land owners. I am often asked to advise when a right of way is being interfered with or when clients require more pre-emptive guidance to assist them in establishing what they can and cannot do on land which is subject to a right of way.
The first task is always to establish the true nature and extent of any right of way. This involves reviewing the legal title to the land and establishing clearly how the access has been used historically. Rights are often expressly set out in the property’s deeds, but often rights are acquired through a course of use. It may or may not be necessary to prove the existence of the right of way prior to being able to act proactively in enforcing any rights which may exist.
Very often the existence of the right of way is not in itself disputed. What can be much more contentious is the extent of any right. There may be a disagreement about the use to which a right of way is being put. Such disputes often crop up when the land use has changed and the right of way is now being used more heavily than before or by different kinds of traffic. Land developers are often challenged when development plans mean that a right of way will be used much more intensely than it has been historically.
Once the existence and extent of the right of way has been established, careful consideration needs to be given to the exact nature of any interference which is being experienced. Not all activities, which on the face of it seem to amount to interference, will be substantial enough to be legally actionable as a private nuisance. The case of Hutton v Hamboro way back in 1860 established that the interference will not be actionable if the right of way can be “practically and substantially exercised as conveniently” as it was before. Would a gate across a right of way be substantial enough? How about a series of gates? With a lock? But you are offered a key to the lock? In reality each case is judged on its merits but the burden is on the user to demonstrate the seriousness of the interference.
Assuming the right of way has been established and sufficiently substantial interference can be proved, what options are available? Legal proceedings are an obvious option and may be the only realistic avenue if a right of way needs to reopened as a matter of urgency. Unless the situation can be resolved swiftly, a court claim for a declaration as to the extent of the right of way, abatement of the nuisance, damages to cover any loss suffered and an injunction to force the reopening of the access would be the usual approach. Very often obtaining an injunction is the priority and to persuade the court that one is necessary the claimant in the case needs to move quickly.