Case Report: 1993 SLT 987

Key points: Servitude right of access to dwelling-house – gates athwart access road – whether gates an obstruction due to disability of user – Court decision based on ability of persons of average strength and agility.

The facts: Mr & Mrs Drury owned a cottage situated on farmland some distance from the public road. Their title contained an express grant of vehicular and pedestrian access over an access road running through the farm fields. Gates were erected by the farmer at each end of the access road to prevent stock from straying. The Drurys were disabled and in poor health and found it difficult to open and shut the gates, which they described as …. ”heavy, improperly hinged and so placed as to be difficult to reach”, and which therefore constituted a material obstruction to their right of access. They applied to the Sheriff Court for Interdict, which was refused. They then appealed to the Court of Session, which refused their appeal.

Decision: The Court decided that the farmer was entitled to erect swing gates across a public or private right of way in order to contain stock, provided the gates did not amount to a ”material obstruction”; and further, that the individual characteristics of the user were not relevant in determining the meaning of ”material”, the test to be applied being whether a person ”of average strength and agility” could open or surmount the gates.

Comments: This is one of the series of cases following the principles laid down in Lord Donington v Mair and earlier cases, regarding the circumstances in which gates on a right of way may or may not be considered as obstructions. These cases are useful, therefore, in establishing the tests to be used in determining whether a gate or other barrier across a right of way constitutes a ”material” obstruction.