Paul Engelbrecht visits the site of clients Dunedin Homes Limited and reflects on their level of activity and achievements
Rights of Way: is a gate an obstruction?
- AuthorAndrew Turner
Gates and rights of way can be an unhappy mix. I often hear the cry "my neighbour has put a gate across the lane. He can't do that. I've got a right to pass along that lane. I want to get an injunction against him". Breaking it to the client that the erection of a gate will not necessarily amount to an interference with the right of way can have emotional consequences. Disbelief. Anger. Confusion. And then the suspicion that you are somehow working for the other side.
The legal test in the case of alleged obstructions, put simply, is: "can the right of way be substantially and practically exercised as conveniently as before?" The answer in most cases is that a single unlocked gate will not normally be held to be a substantial interference.
But anything more than an unlocked gate probably will be held by the court to be a substantial interference and therefore unlawful.
Often, the justification for the erection of a gate is security. Where security is the concern, the gate may have an electronic fob or keypad operated lock and be connected to the owner's building by an intercom system. But even if the person with the benefit of the right of way is provided with a fob or the code to the keypad, this is still likely to be held to be a substantial interference with the right of way because the gate will obstruct deliveries, visitors, and emergency services.
Finally, a common situation and cause of dispute is where an individual who enjoys a right of way over a neighbour's driveway fails to close the gate after passing through it. I have had many cases where people have contacted me to seek legal advice and the first thing they do is to "advise me" that the neighbour is not closing the gate and that the neighbour is committing an unlawful act. But the truth is that failing to close a gate in those circumstances is not necessarily a nuisance nor is it necessarily negligent nor unlawful in any other way. The legal position is simple: you have a duty not to do something which is likely to cause loss to your neighbour. Leaving the gate open may be inconvenient or indeed irritating for the land owner but if it does not cause a loss, there is no claim. The situation might be different if the gate is designed to keep livestock on the land. If the livestock were to escape and to cause a loss to the land owner, then the party leaving the gate open in those circumstances would be liable in damages to the land owner.