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F E Smith
F E Smith, Advocate
Category: Property Law
Satisfied Customers: 9784
Experience:  I have been practising for 30 years.
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A neighbour has put up gates across a previously open area,

Customer Question

A neighbour has put up gates across a previously open area, often used for turning by all, on land which they do own. This action has made access into my driveway and parking area by my home very ,very tight, difficult, and for some vehicles actually impossible. What can I do? They say it is to stop people parking there without permission. This is not on/off the public highway but on/off a private drive that we all have legal access to use, but owned by third party. Is there anything I can do to get them to remove the obstructing gates?
Submitted: 1 year ago.
Category: Property Law
Expert:  F E Smith replied 1 year ago.

Please confirm that the right of way over this area is documented in your deeds or some other way, that you have the right to use it.

You say “we all have legal access to use”. How many people are affected by this?

Are the gates locked?

In order to do anything about this, you have to have a documented right-of-way for vehicles. Before a right-of-way is deemed to be obstructed the obstruction must be substantial. If the right-of-way was only on foot, and the gate was not locked, then it’s not a substantial obstruction. If it is locked, but the only gives you a key and the right-of-way is on foot it is probably still not a substantial obstruction.

It is likely to be a substantial obstruction if there is a gate, whether locked or unlocked if you have a vehicle right of access because of the bother of having to get in and out of a vehicle to manoeuvre or use the right, opening and closing the gate.

If the gate owner simply refuses to remove it, you would have no option but to take him to court for an injunction to make him remove the gates or leave them open or put in some automatic system.

Litigation is expensive and hence, the more of you who are involved with this and could contribute towards the legal costs, the better. However anyone who doesn’t contribute will get the benefit of any outcome without having the risk of potential costs if the application fails.

Can I clarify anything else for you?

Please rate the service positive. It is an important part of the process by which experts get paid. It does not cost you anything but helps us greatly.

Best wishes.

FES

Expert:  F E Smith replied 1 year ago.

In order to do anything about this, you have to have a documented right-of-way for vehicles. Before a right-of-way is deemed to be obstructed the obstruction must be substantial. If the right-of-way was only on foot, and the gate was not locked, then it’s not a substantial obstruction. If it is locked, but the only gives you a key and the right-of-way is on foot it is probably still not a substantial obstruction.

It is likely to be a substantial obstruction if there is a gate, whether locked or unlocked if you have a vehicle right of access because of the bother of having to get in and out of a vehicle to manoeuvre or use the right, opening and closing the gate.

If the gate owner simply refuses to remove it, you would have no option but to take him to court for an injunction to make him remove the gates or leave them open or put in some automatic system.

Litigation is expensive and hence, the more of you who are involved with this and could contribute towards the legal costs, the better. However anyone who doesn’t contribute will get the benefit of any outcome without having the risk of potential costs if the application fails.

Can I clarify anything else for you?

Please rate the service positive. It is an important part of the process by which experts get paid. It does not cost you anything but helps us greatly.

Best wishes.

FES

Customer: replied 1 year ago.
Thanks for the reply, I don't wish to go to court.
I have access rights over the drive but not over the part with the gates making it hard to turn in very tight. This only affects me and my vehicles turning into my driveway. These neighbours know full well what they have done and basically don't care. So much for the law ! If it was the highway I could do something, but on a private drive people can do what they like.
Expert:  F E Smith replied 1 year ago.

If the area that you were using to turn was not part over which you have the right of way, and they have just gated off that part, then it was you who were trespassing if you use that part to assist turning and the gates now prevent this.

You are correct that on a private drive, people can do what they like but they can only do that if it does not interfere with a legitimate and legal right of way.

Customer: replied 1 year ago.
Ok thank you.
On the original planning blueprints for the whole development it shows this part, owned by the neighbours, as an open and turning space, part of the stipulation. I have already been down the council route who have consequently allowed these gates to be here.
Expert:  F E Smith replied 1 year ago.

Unfortunately, the local authority cannot insist as part of a planning stipulation that a neighbour keeps an access free unless there is a roW over it.

I am afraid that if you have no right of way over this area, they are allowed to just exclude you without justification and it would be for the local authority to take it up with the developer as to how and why they did not keep this access open.