Reasonable Access Depends on Usage

When a landowner erected a fence and a wall that impinged on a right of way and made it impossible for a farmer to get his hay baler into a field, trouble was inevitable.



After the wall and fence were put in place, the width of the access to the field was slightly more than 10 feet at its narrowest point. The hay baler could not pass and so the farmer went to court seeking to obtain access. He produced oral evidence from people experienced in hay baling in support of his claim that the access had been unreasonably narrowed, but no photographic evidence was presented.



The judge accepted that the farmer had a right of way onto the field for agricultural purposes but concluded that the fence did not constitute a substantial interference with it.



The farmer appealed, arguing that the judge had failed to consider his evidence that the fence had rendered access to the field impossible for the baling machine, which is a reasonable agricultural use.



The Court of Appeal upheld the appeal. In its view, the judge in the lower court had failed to give adequate reasons why the obstruction did not constitute a substantial interference with the farmer’s right of access to the field.