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A recent decision in the High Court* has ruled it's possible to acquire
a prescriptive easement to hang a gate over a driveway by occupying the
airspace.
The case is arguably more interesting however for the comments made by
Mr Justice Norris on neighbours who choose to settle their disputes through
litigation.
It concerned a shared driveway used by two neighbouring homeowners - one
owned the drive (I'll call them A), the other (I'll call them B) had a right of
way over it, and about 35 years ago a previous owner of B's house had erected
gates over the driveway.
In the time honoured fashion of neighbour disputes, the case concerned
what at first may seem a relatively trivial matter of one of the neighbours, B,
preferring the gates to be closed to a greater extent than A did.
Arguments were made on the one side about security and on the other
about difficulties in opening and closing the gates, especially from the road
when returning home.
This could probably been resolved practically, as Mr Justice Norris
indicates, by building electric gates at a cost of about £5,000 rather than
pursuing the matter through the courts at considerably greater expense for all concerned.
But when neighbours fall out, reason seems to go the same way.
As far as the law is concerned - the court held that it's possible to
acquire a prescriptive easement to hang a gate over a driveway by occupying the
airspace, but on the facts B had failed to show a continuous 20 year period of use
of the appropriate quality.
Intermittent use could suffice, but even so B's use was not of the
character, degree and frequency required to indicate the assertion of a
continuous right.
Nevertheless, B had a right to open and close the gates for all purposes
connected with the reasonable enjoyment of B's home provided it didn't
substantially interfere with the reasonable enjoyment by A of its home.
In the court's view it would not amount to substantial interference for
the gates to be closed daily from 11 pm to 7:30 am, on days when A was absent
from home and on additional days when there was a greater likelihood of
intrusion from revellers.
Anyone reading the transcript of the judgement is left in no doubt
however about what Mr Justice Norris thinks of cases like this ending up in the
High Court.
He begins his judgement:
"Rather to my surprise I find myself
trying a case about a pair of gates in Formby: surprise on at least two counts.
First, that anyone should pursue a neighbour dispute to trial, where even the
victor is not a winner (given the blight which a contested case casts over the
future of neighbourly relations and upon the price achievable in any future
sale of the property). Second, that the case should have been pursued in the
High Court over 3 days. It is not that such cases are somehow beneath the
consideration of the Court. They often raise points of novelty and difficulty
and are undoubtedly important to the parties and ultimately legal rights (if
insisted upon) must be determined. But at what financial and community cost?"
Instead,
parties should first be encouraged to use the more obvious forms of ADR -
negotiation and expert determination.
If that
fails, then the parties should be directed to engage in mediation.
"I
think it is no longer enough to leave the parties the opportunity to mediate
and to warn of costs consequences if the opportunity is not taken. In boundary
and neighbour disputes the opportunities are not being taken and the warnings
are not being heeded, and those embroiled in them need saving from themselves.
The Court cannot oblige truly unwilling parties to submit their disputes to
mediation: but I do not see why, in the notorious case of boundary and
neighbour disputes, directing the parties to take (over a short defined period)
all reasonable steps to resolve the dispute by mediation before preparing for a
trial should be regarded as an unacceptable obstruction on the right of access
to justice."
Saving people from themselves - often the best thing a lawyer can do.
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