A private right of way over land is known as an easement. Hutton v Hamboro (1860) and Colls v Home and Colonial stores Ltd  established that a party entitled to an easement (“dominant owner”) has the right to exercise the easement without “substantial interference”, which gives rise to an action for private nuisance.
To establish substantial interference, the dominant owner must show:
- That it is entitled to the benefit of the easement
- The nature, extent and scope of the easement
- That the interference with the easement is substantial. A trivial impact on the use of an easement is insufficient to succeed in an action for interference.In the case of Kingsgate Development Projects Ltd v Jordan & Another, the High Court considered whether there had been substantial interference with the claimant’s private right of way as a result of the erection of gates on land subject to a private right of way. Background In July 2012, the defendants, Mr & Mrs Jordan, bought a property, Ferndown. A track was located within Ferndown that was subject to an express easement in favour of the neighbouring property, Kingsgate Farm. When the defendants bought Ferndown, there were two gates across the path concerning the easement – one at the entrance to the path, which was opened by pushing a button and closed automatically, and a second one which was manually operated and unlocked. The defendants installed a third, manually-operated unlocked gate between the existing two. The owner of Kingsgate Farm claimed that the installation of the gate substantially interfered with the easement to the extent that it was unsuitable for its intended use.
The court held that the installation of the third gate, which meant that there were three gates within less than 100 metres of each other, amounted to a substantial interference with the easement. Consequently, the court ordered the third gate to be removed.
The issue was not the nature of the gate itself, but the fact that its presence meant that there were three gates close together.
The case highlights that a court will consider the cumulative effect of the obstructions over the easements to determine whether there is substantial interference and therefore actionable.
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