Rights of way and electronic gates: the legal powder keg

Upgrading a manually-operated gate to a more sophisticated, key-coded or fob-operated electronic gate might sound sensible, or practical, or aesthetically delightful, or all of those. But electronic gates are becoming an increasingly common trigger for litigation.

If there is one message to extract from this blog, it is this: do not erect an electronic gate across land that is subject to a right of way without first taking legal advice. Fail to do so and you are highly likely to be on the backfoot before you know it and fighting your way out of a tight spot.

What is the legal position?

You must not substantially interfere with a third party’s ability to exercise a right of way over your land.

Changing a manually-operated gate to a gate operated with a keycode and/or fob will, in the vast majority of cases, amount to a substantial interference with a right of way.

One might question what the problem is if the code and a fob are  issued to the person with the benefit of the right of way. But one has to remember that the benefit of the right extends to visitors to the property as well as to the owner. And there are some obvious practical problems here, including the following:-

1. fobs can get lost;
2. key codes can be forgotten and/or periodically changed;
3. not all visitors can be provided with a fob or keycode in advance, and many will not announce their arrival;
4. access for emergency vehicles may be compromised;
5. postal delivery services may be compromised;
6. there may not always be someone at home to provide a visitor with access through the gate.

The Courts have drawn a distinction between electric gates that are operated by the press of a button (ie anyone can press the button and gain access) and electric gates that can only be operated by those holding the keycode or fob. The requirement to hold a keycode or fob has been held to be an unlawful, substantial interference.

But those electronic gates that can be opened with the press of a button have been held to be lawful as any visitor can enjoy access, whether holding a fob or code or not.

Some might question the purpose of an electronic gate if access can be gained by anyone pressing a button. That hardly screams ‘effective security measure’. But what one has to do in this situation is prioritise the rights of the person with the benefit of the right of way over your own desire for aesthetic or practical property improvements.

Don’t fall into the hole referred to above. Think ahead and plan ahead.  

Please contact Andrew Turner at AET@hughes-paddison.co.uk or on 01242 586 841 if you have any questions relating to your property rights.