Rights of way and planning permission

[Doug71]

I don't know if anyone can offer any advice on this but here goes.

There is an old building behind my garden, the building is owned by my father. Due to family fall outs my fathers one aim in life is to make our life as difficult as possible. Years ago there was a right of way granted over my land to this building which was meant to be temporary, he has not used the ROW for probably 4 years.

I have just heard my father has put in planning to convert this building in to a bungalow using the ROW over my land as access. Despite doing everything properly at the time through solicitors etc turns out the wording for the ROW is ambiguous and so it still exists.

I don't think the building lends itself to conversion, built probably in the 50's, concrete portal frame, single skin brick, asbestos roof and bitumen/asphalt floor.

The proper access to this building is down a drive also owned by my father but he has just sold the land at the end of this drive for four building plots with a fifth one at planning stage, I am lead to understand you can only have up to 5 plots off a normal private drive which is why he wants to use my garden to access this conversion.

Anybody got any ideas how I can stop this going ahead, I don't have the money for a legal battle as I know from previous experience these get very expensive very quickly, thing is he has plenty of money to throw at it.

I don't mind the building becoming a dwelling as it would probably look better than it does now, I would just rather not have people driving through my garden!

Any advice appreciated, Doug

 

[MikeG.]

I'd object to the planning application on the grounds of the access. Planners can deal with that at no cost to you whatsoever.

 

[shed9]

The right of way should have some definition of what that right is and assuming it's in the relevant title deeds. It is unlikely this right of way will allow for this to be specified as main access to the proposed works.

Essentially this all rests on what the right of way actually defines and what your father wants to do specific to this right relevant to the proposed plan.

 

[profchris]

I'd object to the planning application on the grounds of the access. Planners can deal with that at no cost to you whatsoever.

Agreed. But do look into what was actually granted as a right of way. It won't help you to say it was "intended" to be temporary if the granting document says otherwise - the planners will go on what the document says. I see shed9 has just posted something similar.

If the right of way is not in a formal document, then you might need legal advice on what you have granted and for how long - can't help there, my land law training is 40 years out of date!

The important thing for planning is that there is an access problem, so your objection needs to *demonstrate* that.

 

[Blackswanwood]

I agree with the previous answer - it very much depends on how the right was defined and either captured in the property deeds or on the Land Registry records if the title is registered as most now are. You can apply online to the Land Registry to get a copy of the registered title for both properties.

Objecting to the planning application may help but the planners will be more interested in suitability of the access as opposed to the legal rights.

While I appreciate you don’t want to incur costs I would suggest you get some advice from a solicitor. A consultation to understand your legal rights will not be massively expensive and doesn’t commit you to getting embroiled in a legal dispute.

A couple of other thoughts ... will the development need to access services over your land? If so you could refuse to give permission or use it as a bargaining chip to come up with an alternative workable access solution?

If the bungalow is to be sold the vendor will need to disclose any dispute to the buyer. A disclosed dispute is likely to make a buyer think twice so it is in your Fathers interest to also find an amicable solution.

 

[MikeG.]

.....Objecting to the planning application may help but the planners will be more interested in suitability of the access as opposed to the legal rights............

Exactly. Whilst access may be legal, it may also be unacceptable in planning terms. Denial of planning permission completely solves the immediate problem, although the OP may subsequently decide to have the legal issues resolved.

Behind this story is obviously a very unpleasant family situation, which is always sad. I am sure the OP has contemplated selling up and moving away, which would be high on my list in these circumstances.

 

[ScaredyCat]

Does the right of way have any specifics?

We have one and it categorically states "vehicular access" rather than foot traffic (or the legal equivalent)

.

 

[DrPhill]

Yeah, wording seems to be everything. We have one (in our favour) that allows (from memory) us
" and our assigns to pass and repass on foot, with or without animals animals and or vehicles"

The 'repass' always amuses me - it is as if someone in the past tried to argue that the clause applied once and once only. Likewise the 'with or without animals' to make sure that an animal was not needed to exercise this right.

 

[HappyHacker]

Sorry to say you do need to get advice from a good solicitor. I am in the middle of a boundary dispute over a plot of land I sold to a neighbour, the problem was caused by the original solicitor 17 years ago, compounded by Land registry drawing a boundary in the wrong place. Since then I have had two more crap solicitors from a different company, one was a trainee, and am on a third, from yet another company, who does know what he is talking about, but he is not cheap.

Planning in my local authority are useless and I would not rely on them doing anything and disputes over access are not usually a planning issue. They would not allow me planning permission for a bungalow on a plot as it would spoil the street scene despite the fact it could not be seen from the road. They did allow planning for a house on the same plot which could be seen from the road. Another excuse was the bungalow was too big on the plot but they have have given permission for another nearby which occupies 95% of the plot!

Good luck

 

[MikeG.]

........disputes over access are not usually a planning issue........

No, they're not. But that's not the point this time, as a denial of planning permission for the conversion of the building to a dwelling would also solve the potential issue with the access (ie no conversion, no need for access).

 

[shed9]

Sorry to say you do need to get advice from a good solicitor. I am in the middle of a boundary dispute over a plot of land I sold to a neighbour, the problem was caused by the original solicitor 17 years ago, compounded by Land registry drawing a boundary in the wrong place. Since then I have had two more rubbish solicitors from a different company, one was a trainee, and am on a third, from yet another company, who does know what he is talking about, but he is not cheap.

Planning in my local authority are useless and I would not rely on them doing anything and disputes over access are not usually a planning issue. They would not allow me planning permission for a bungalow on a plot as it would spoil the street scene despite the fact it could not be seen from the road. They did allow planning for a house on the same plot which could be seen from the road. Another excuse was the bungalow was too big on the plot but they have have given permission for another nearby which occupies 95% of the plot!

Good luck

I hear what you're saying HappyHacker in needing good advice but I think you also highlight how fraught that is in itself. I'd wager that you could ask five solicitors the same right of way query and get six different answers. I do agree that planning are not always helpful or indeed logical.

In my experience title easements very rarely benefit anyone to the collective benefit of the local community. They are often a throw back to very different times and needs. One of my title deeds allows me to move a dog drawn cart across a neighbours field between two fixed points? How is that relevant to either of us in 2019?

Doug71, I think we can all help a little more if you can share the definition of the right of way and give some insight as to where it is recorded (i.e. is it in the title or is it assumed over time). Appreciate you may be uncomfortable listing this but they are often common phrases and often common to a lot of title deeds. It's a crap situation to be in and other opinions on the details could help. Happy to PM if more comfortable about that.

 

[Doug71]

Thanks guys.

Don't want to sell up as my house is a big old Victorian Gothic school we converted, we have invested loads of time and money into making it the family home, besides don't think anyone would want to buy it with the ongoing disputes.

Everything is on the deeds and properly registered. The ROW was supposedly only temporary while the building in question is owned by my father. The drawings with the deeds clearly say temporary but the problem is the wording. All the other ROW over different parts of the properties which are permanent say something along the lines of "The owners and occupiers for the time being and their successors in title" but the one for this building just says "The owners and occupiers for the time being". I am told this is not clear enough, you can see what they meant but it can be interpreted as the ROW is for whoever owns it at the time although it was meant to mean it didn't transfer with the property.

Could the maximum of five properties off one drive thing be correct (I am told it is four in some areas) as this drive is already used by two businesses and three dwellings so that could work in my favour?

I will get the planning officer out for a chat and see what his thoughts are on it all.

Just seen a few posts while I was typing, will post this then read them.

 

[shed9]

Doug71, be aware that access does not necessarily mean that they can develop that access, i.e. build a path / road. It just means they can can use it as right of way. Of course without knowing the wording this could be moot.

 

[Phil Pascoe]

... They would not allow me planning permission for a bungalow on a plot as it would spoil the street scene despite the fact it could not be seen from the road. They did allow planning for a house on the same plot which could be seen from the road. Another excuse was the bungalow was too big on the plot but they have have given permission for another nearby which occupies 95% of the plot!
Good luck

On the road my mother used to live on they gave permission (the development never happened) for an industrial plant that was estimated to have needed a large lorry in and out every three minutes 24 hours a day to service it, but refused permission for a bungalow just up the same road because it would have created too much traffic. They refused her permission to build a bungalow on her land because it was liable to flooding, but were going to give permission for 6,000,000 gallon lagoons (in a valley, above two villages) on ground that was higher on the other side of the road - that was deemed perfectly safe. She got PP for her house after eight attempts because she wanted to move the house to get the footings away from a well, and they wouldn't allow it. She got it on the last attempt ......... yes, you've got it .......... on condition it was moved away further.

 

[Blackswanwood]

[Could the maximum of five properties off one drive thing be correct (I am told it is four in some areas) as this drive is already used by two businesses and three dwellings so that could work in my favour?

This is about whether the access needs to be created than adoptable standard. If there are more than five houses (front doors that the postman delivers to) it needs to be adoptable. Not sure how businesses count.

Objecting to the planning permission on the basis already outlined seems a no regret move (other than potentially deepening divisions with your family). I also think the ambiguity would put any prospective purchaser off and they would find it difficult to get a mortgage provider to lend particularly if you have made clear how you interpret the wording.

You really do need proper legal advice. I hope you find a way through that avoids deepening the family rift ... or even forms the basis that it can start to heal.

 

[Blackswanwood]

Sorry, meant to say “to an adoptable standard”

 

[Doug71]

Thank you for all the advice and opinions.

I spoke to a solicitor today who was much more positive than the previous 2, in his view the right of way is for my father only and does not go with the property so once my father no longer owns it the right of way goes.

On the back of this I cannot see any way that planning would pass the conversion because it has no access for anyone apart from my father.

I totally agree with whoever said ask 5 solicitors a question and you will get 6 different answers as it seems to be the case here.

Hopefully a quick word with planning and this will be sorted without causing any further friction.

Thanks again, Doug

 

[Woody2Shoes]

Good luck!

One other thought that I don't think has been mentioned. I don't know the layout of things in your case, but one cheapish option might be to seek planning permission of your own to build some structure on your property (house extension, summer house, workshop(!) etc. ) which would block that line of access. In my understanding you would be completely within your rights to do this, and it might be a useful way to 'extinguish' the right of access for good.

Cheers, W2S

 

[MikeG.]

I'm not sure about that W2S. Getting planning permission to build across the access wouldn't legally remove that right of access. It would practically remove it, but then leave the OP vulnerable to court action for blocking that access. Again, planning departments don't have a lot of interest in the legalities, so it is perfectly possible for them to grant permission for something which would (for non-planning reasons) be illegal to build.

 

[RogerS]

Regardless of how many solicitors you speak to, if it goes to court the final result depends on just one person - the judge.