Whiston v Leonard: right of way, signage and conduct in neighbouring farm dispute

In Whiston v Leonard [2026] EWHC 355 (Ch), Mr Justice Michael Green dismissed both the appellant's appeal and the respondents' cross-appeal arising from a long-running dispute between neighbouring farm owners in Shropshire over a right of way. The case touches on the evidential threshold for substantial interference, the proper scope of injunctive relief, and the reluctance of appellate courts to disturb trial judges' evaluations of fact.

The appellant, Mrs Whiston, owns Lower Fenemere Farm. The respondents, Mr and Mrs Leonard, own the adjoining Lower Fenemere Court, which benefits from a right of way over part of the appellant's land — used primarily for access and turning. In August 2020, the appellant erected a gate and fence across the right of way without prior agreement. Following complaints, these were replaced in December 2021 with double gates (the "Double Gates"), kept closed and displaying a sign asserting farm livestock were in progress.

Her Honour Judge Watson, following a four-day trial and site visit, found that the Double Gates alone did not constitute substantial interference but that their combination with the sign and the appellant's conduct towards visitors did. She ordered the sign to be replaced with wording acknowledging the respondents' turning rights, and injuncted the appellant from challenging visitors using the right of way — for a period of two years. The counterclaim, which sought a declaration that the respondents were obliged to keep a barn door closed, was dismissed in its entirety.

On Ground 1, the appellant argued insufficient evidence supported the interference finding. Michael Green J rejected this, applying the well-established principles in Henderson v Foxworth Investments [2014] 1 WLR 2600 and Volpi v Volpi [2022] 4 WLR 48. The judge had reviewed 43 videos from the respondents and 29 from the appellant's CCTV, heard oral evidence from ten witnesses, and conducted a site visit — a comprehensive evidentiary basis. The appellate court was not persuaded that any particular piece of evidence had been overlooked or misconstrued. The finding that the closed gates combined with the sign deterred unfamiliar drivers — some of whom reversed dangerously down the track rather than open the gates — was well supported.

On Grounds 2 and 3, concerning the barn door, the court declined to entertain the nuisance argument advanced on appeal, which had not been properly pleaded or argued below. There was no evidence the door was regularly left open and unmanned, and the Judge had correctly concluded there was no legal prohibition on the respondents leaving it open.

On the costs grounds (4 and 5), the court held that the Judge's decision to award the respondents their costs in full was a legitimate exercise of her wide discretion. The respondents were plainly the overall winners, and a judge is not required to engage in an issues-based apportionment simply because a claimant did not succeed on every pleaded point.

The respondents' cross-appeal sought a finding that the Double Gates in themselves caused substantial interference, and an injunction requiring them to be kept open except during sheep-handling. Both grounds failed. The Judge's comparison between the inconvenience of the Double Gates and the former regime of the Original Gate — which had to be opened and closed multiple times daily — was a legitimate evaluative exercise within her discretion. The relief she granted adequately addressed the interference as she had found it, without requiring the appellant to leave her gates permanently open.

The case is a useful illustration of how courts approach cumulative interference in right of way disputes: individual factors which might not independently amount to substantial interference may do so in combination. It also confirms that appellate courts will give considerable latitude to trial judges who have conducted site visits, heard oral evidence, and engaged in multi-factorial evaluation.

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