16 The observation that the Trewins would not be limited to the single access they currently used if they close part of it before opening a new access point must be seen in the context that, as was concluded in that case, the access then used by the Trewins was so extensive as to exhaust the limits of what was reasonable use of the right of way. That is not so in the present case, and I do not see that there would be any requirement for the proprietors of lot 19 to close the existing access point before opening a second one.
17 However, the costs of relocating the existing access way and of opening a second one, if it is desired to do so, should be borne by the dominant owners. I accept that the cost of installing the initial gate must be borne by the servient owner, as in the events that have happened it has been. When fencing the right of way the servient owner was not entitled to obstruct the access point then in use, and ought to have installed a gate. He did not originally do so. Ultimately, he remedied that, earlier this year, by installing, at his own expense, the gate that is now there. In circumstances that that was the point which had until then been used for access from the right of way into lot 19, and that Mr McCrow had in his letter of 5 October, stipulated that the gate should be located at that point, I do not accept that it was necessary for Mr Chaplin to ask again where the gate should be installed. If Mr McCrow wishes to change the use of the right of way by moving the access point, or to increase it by installing a further access point, that is a cost which he must bear.
18 Argument has been directed as to whether a declaration should be made as to the continued existence of the easement. There is not now any dispute as to the continued existence of the easement. Indeed, in reality, I do not think there has ever been any real dispute as to the existence and enforceability of the easement: there was simply a refusal to honour its terms, and an obstruction of it for a year and a half until the gate was installed, but I do not read Mr Chaplin's correspondence as denying its existence.
19 I completely accept Mr Singleton's submission that the Court does not encourage, let alone expect, parties to resort to self help rather than to approach the Court; but the appropriate remedy, so long as there was an obstruction, was an injunction to require removal of the obstruction, rather than a declaration that the easement continued to exist. Declarations are granted to resolve disputes as to what are the competing legal rights of parties. There was never really any dispute as to whether the easement existed or not, although there was at the time some dispute as to precisely what it might permit. As I outlined in argument, it is usually undesirable to declare prospectively the full extent of what an easement will permit: it may well be that as land is redeveloped and zonings change, the permissible user might evolve with time. But there is no harm in making a declaration which may avoid future dispute and which proscribes such which is not sought to mark out the maximum limits of user, but it reflects what might unarguably permissibly be done without exceeding the bounds of the reasonable user.
20 For those reasons, I make the following orders:
1. Order that by 10 September 2009 the defendant alter the gate presently situated in the fence erected between the right of way described in the Deposited Plan 517542 affecting lot 20 and benefiting lot 19 in that plan and the said lot 19, being a fence approximately 50 metres in length running approximately north to south so as to allow the gate to be conveniently opened and closed from within lot 19 as well as from within the said right of way.