Business Clinic: Moving cows – when can we open and close gates?

Whether you have a legal, tax, insurance, management or land issue, Farmers Weekly’s Business Clinic experts can help. Here, Mark Charter, partner at Thrings, advises on the tricky area of garden fences which adjoin livestock land

Q: I own a property where the only access to a council-owned road is an un-registered lane. The local farmer places a gate across this lane when he moves his cattle.  If we see cattle movement we open and close the gate, but sometimes he closes the gate and it could be an hour before any cattle arrive there.

Is it reasonable to open and close this gate when there are no signs of cattle movement, especially as it is a lane not owned by the farmer?

Mark Charter
Partner, Thrings

A: The first task will be to understand the rights of way benefitting your property and the precise status of the unregistered lane. For example:

• Who owns the lane?
• What rights is it subject to?
• Are there public rights of way over the lane and, if so, what specific type?

You will also need to find out the rights of way over the lane that benefit the farmer’s land. Not all rights of way are the same and they can vary in terms of how those routes are used, for example: with or without vehicles, only at certain times or for agricultural purposes only. It is useful to be aware of any qualifications, in other words specific restrictions, to the rights.

See also: Can we get neighbour to stock-proof fences?

The extent of the right of way can sometimes be determined by how it was acquired. Broadly speaking, there are three ways in which they are acquired. They can be provided by express grant (ie, granted in a legal deed), prescriptive rights (where the right is acquired by use over a long period) or by easements of necessity.

Once the details of the rights of way are determined, for you, the farmer, and any public rights of way, the next question to ask is: Does the farmer’s action constitute an unlawful interference with those rights?

If your property benefits from an unqualified, or unrestricted, right of way over the lane, the farmer should not interfere with you exercising your right of way. In that context it is quite reasonable and appropriate for you to open and close the gate when there are no signs of cattle movement.

Like all these situations, they are best resolved by a common sense and pragmatic approach if at all possible. Consequently, we would recommend to:

• Speak to the farmer about the issue and see if you can arrive at a consensus as to how the gates are used and when.
•  If you cannot reach an agreement, the next move would be to take a more formal approach by asking a solicitor to investigate the rights of way, review your position and provide specific advice. Your solicitor, in the first instance, could write to the farmer on your behalf.
• In any event, whatever rights of way you may have, you should be very careful not to open the gates if there is any danger that cattle may escape onto the public highway or other people’s property. If an accident or damage were caused as a result, you could be liable for the consequences.

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