So what happens if the Burdened Owner decides that he wants to place some obstruction on the route of the access for some reason e.g installing a gate so that his own property is more secure.
If the Benefited Owner's right was created in a document then that document might contain the answer - but it might not. If it doesn't, then the answer lies in the common law. If the right was acquired by use over a long period, then the Benefited Owner will be reliant on the common law.
I'll first briefly cover how to acquire a right by use over a long period and will then discuss the issue of gates (with or without locks) and whether they are permitted or not.
No document but access has been used for some time
Rights of access can be created by prescription, which requires:
- continuous use for a period in excess of 20 years;
- with the use having been open and peaceable and
- without any challenge having been made, in the courts, to such use.
If there is a dispute as to whether or not the access right exists, the onus is on the Benefited Owner to show that the right has been created.
There are many cases on various circumstances of duration and degree of use, whether the use was open or clandestine and whether it has been challenged at all. In most cases the answer as to whether or not a valid right has been created turns on the particular circumstances.
Now, let's look at what happens if the Burdened Owner installs a gate on the access route.
Restrictions of Rights
A Benefited Owner is only entitled to use his right of access free from "unreasonable obstruction". There are justifiable measures that a Burdened Owner could take to restrict the Benefited Owner's access over the route. As with the operation of prescription however, what is and what is not an unreasonable obstruction will always depend on the circumstances.
Extent of the right
Before considering whether a gate constitutes an obstruction, the extent of the access right must be determined - from the document or (for a prescriptive right) by the extent of use to date. If a prescriptive right has been exercised for pedestrian, but not vehicular, access or if access was exercised with the sole purpose of reaching part of the property for repair and maintenance only, a Benefited Owner could not object to any obstruction that prevents them doing more than that.
In the situation where a gate is installed, it is normally only permissible where it doesn’t cause a "material inconvenience" to the Benefited Owner and this is a question of fact.
Nature of the property
Courts will consider the nature of the property in deciding whether gates are a material obstruction. In rural settings e.g. it is often permissible to install gates to prevent animals straying on to an access route, whereas this would be unlikely to offer justification in an urban setting.
Safety of the public and security of the site will also be relevant. This argument is obviously less relevant in residential properties but in an industrial or business setting it could be more persuasive.
Whether or not the property is private or accessible by the public will also be a relevant issue. If a property is intended to be private, with limited access being granted to the public, then the installation of gates is more likely to be permissible than if the public, particularly in high volumes, were being allowed to make use of the access route. Case law tends to suggest that in circumstances where access is taken by high volumes of people, the courts would be unlikely to allow a Burdened Owner to erect gates that need to be opened by every user.
If a gate is permissible, the next question is can it be locked? The answer is often that the gate cannot be locked, even where a key is provided to the Benefited Owner. If a key is lost or the lock is ruined, then access will obviously be prevented (at least temporarily).
With provision of a key
It is obviously possible for the Benefited and Burdened Owners to agree that both parties will have a key to the gate and they're able to live harmoniously as a result. However, such an arrangement is not always practical. What if the Benefited Owner needs to permit access to his property e.g. in the course of business? It would make little sense to provide every visitor with their own individual key, especially where the visitors are members of the public, rather than by invite only. There is however a statable argument to be made against this on occasions where visitors will be infrequent. That being the case, access arrangements can generally be made in advance for a key to be provided or for someone to be on hand to open the gate.
There is also a strong argument to be made for locked gates to prevent abuse of the access rights by the general public and to protect the property. In a private residential property, gates at the end of a driveway can be justified to avoid the public parking on the route and blocking it or in the case of a rural property, to prevent the public taking access to a field and camping.
Without provision of a key
Sometimes it might even be permissible to install a locked the gate without providing a key.
Where access is only required by the Benefited Owner during certain times, then it is not objectionable to lock the gate at all other times.For example, if the Benefited Owner only requires access during normal working or specific trading hours, then the Burdened Owner need only grant access then. This could be done either by leaving the gate open during those times or, if the Burdened Owner would rather keep the gate locked, by asking the Benefited Owner to tell the Burdened Owner when he will need access, so that the Burdened Owner can make arrangements to ensure that someone is on hand to open the gate at such times. It should be noted however that if the Benefited Owner decides to change the use of his property so that he needs access at different times then the Burdened Owner would need to accommodate those different times unless the change of use was a prohibited increase in the burden of the right.
In some circumstances the Burdened Owner would not breach the Benefited Owner's rights even if the gates were locked at all times e.g if the Burdened Owner's property was manned 24/7 by security personnel - such that the gates could be opened immediately on request. On the other hand, if gates were locked at all times, with no one on hand to open them if asked, then that is likely to be a breach of the access right if the arrangements that were in place to allow access amounted to a "material inconvenience" e.g. if an unreasonable period of notice had to be given before access would be made available.
Responsibility for the gates
Unless agreement is reached to the contrary, the Burdened Owner must maintain and repair the gate and any lock. The minimum standard of repair will be to ensure that access isn't obstructed and that the gate is capable of being opened by an able bodied adult.
Additionally, if the location of the gate causes a secondary obstruction to occur, e.g. by enabling snow to pile up against it, then it also falls to the Burdened Owner to remove the obstacle and make the route fit for passage.
If there is no formal document, it's not always possible (without a court action) to be certain as to whether an access right has been created and as to the extent of any such right. For any access right, however it was created, it can also be difficult to work out whether obstructing an access route by the installation of a gate is or is not permissible in any given circumstance. In general terms however, the point to keep in mind is that provided that such obstruction isn't an unreasonable obstruction and doesn’t cause a material inconvenience, then the Burdened Owner should be able to install and operate it without breaching his neighbour's right of access.