right of way

[lolly5]

It's been a while since I posted anything about our right of way, but we would really appreciate any advice that anyone's got.

The background
We have a registered (1930's) right of way across next door's back garden - 'granted to authorised persons in all respects as a public right of way or passageway'. This is 8 feet wide along its entire length according to our deeds and has been measured parallel to their house wall. We have always been careful of the neighbour's privacy and have only used the right of way a couple of times a month.

Our new neighbours have said we cannot stop to unload our shopping or logs for the fire, on the right of way, and they have just been granted planning permission to build a wall in the garden parallel to their house plus another wall at right angles to this with a gate for entry.
They park their car in the garden - it's generally half in the right of way and half out - despite our requests they are not prepared to stop doing this.
They are obviously keen to enclose their garden, but if they build the wall parallel to their house then most of it will end up being inside the 8 feet right of way.
We have asked the neighbours to reconsider this and showed them our drawings. They said they have seen these and they dispute which wall the measurement of 8 feet should be taken from. They have measured from the wall of the house next to them ( it hadn't been built when the right of way was granted ) and this measurement would allow them to construct the wall where they want it as they say it doesn't interfere with the right of way. This is also why they continue to park where they do.
We wrote to the planning office with our concerns prior to the closing date but the council have said that they are only interested in what the wall looks like as we both live in grade II listed houses.
The planning office said they do not accept appeals against planning permission and that it is a civil matter. They suggested we took them to court.
We don't want to do this.
What else can we do ?

We are not being difficult, only trying to protect what we bought.
We are worried that if the wall is built and we then decided to sell our house we will have to get the drawings changed as the right of way will be covered.
We're not able to move at the present time - this would have been my suggestion reading someone else's problems !

Any suggestions ?

In hope,
Lolly

 

[Lime]

I would consult a solicitor to protect your interests.

 

[Nemesis]

Have a look at your house insurance and see if it covers you for legal costs.

Also - have a look and see what you have registered at the Land Registry as your RoW. And see what they have.

 

[MdB]

have a look and see what you have registered at the Land Registry as your RoW.

I second this. I'm not an expert (etc etc) but from speaking to a number of people involved with this, the map used by the land registry carries a lot of weight. Plans you might have, do not carry the same weight even if (a this is the kicker) the land registry plans were made from your plan. i.e. if a mistake was made when it was entered on the land registry plan, it is very difficult to get this changed.

I would get this map and show it to you neighbour. If this doesn't resolve the matter then you have to decide if you want to get the solicitor involved.

Be warned, that if you don't exercise your (correct) rights for a period of time (10 years ????) then you can lose the right so its worth getting it sorted out.

 

[middi]

.........." we are not being difficult, only trying to protect what we bought"...

Unless you can prove what you bought, legally, I cannot see an easy solution to your dispute. Unfortunately this can be costly, solicitors, surveyors and so on.

As Nemesis suggests, see if you are covered by your insurance regarding legal boundary disputes.

 

[skier-hughes]

I would also appoint a solicitor immediately, ensure you get one who deals with this sort of problem.

 

[Nemesis]

If you have registered rights then any neghbour proving abandonment isn't a simple matter.

It's certainly not the case that if you don't use for ten years they are lost.

But it's important to establish what is recorded, both as your RoW and on your neighbours' registration also.

Details are available on the Land Registry site, for a small fee, or contact the Land Registry.

But check the insurance before contacting a solicitor. It's very importnat that you contact the insurance company first.

If you don't have any cover you can get it quickly and cheaply - but not if you have started any action!


Also - try the Garden Law website.

I have to say that if you have a right to pass and repass then yes stopping and unloading etc is not part of that.

 

[middi]

The real cause of these disputes is nearly always due to the disagreement regarding the 'datum' points as originally specified and recorded (?).

They tend to disappear over time or go for a walk when nobody cares anymore.

Definetely land registry is your first hurdle.

 

[Nemesis]

I wonder though about the bit which says PUBLIC RoW...

 

[middi]

Good point Nemesis, Public ROW is very different from just a right to access.

 

[lolly5]

Thanks for these replies - will definitely find out about the insurance.
Our title says ' in all respects as a public way or passageway', but think that applies only to the authorised persons.
Will update here on what happens after we've written to the council to say that they've hardly considered our views and are party to causing a potential dispute, although don't expect that to get us anywhere and have written to land registry to ask for their views.

 

[Nemesis]

This has nothing at all to do with the council - it's as they say a civil matter, not a planning one.

 

[Lime]

If you allow time to slip through your fingers so that building work starts you will regret it.
It has nothing whatever to do with the council.
Get a solicitor today.

 

[Nemesis]

If you have insurance cover - it may be that you will be given a solicitor via that.

If you haven't it can be bought quite cheaply. Do that first - costs can escalate!

 

[Flyfisher]

have a look and see what you have registered at the Land Registry as your RoW.

I second this. I'm not an expert (etc etc) but from speaking to a number of people involved with this, the map used by the land registry carries a lot of weight. Plans you might have, do not carry the same weight even if (a this is the kicker) the land registry plans were made from your plan. i.e. if a mistake was made when it was entered on the land registry plan, it is very difficult to get this changed.

I can confirm this from first hand experience. My father-in-law lost a small parcel of land through a mistake when some adjoining land was registered. He subsequently fought the new owner through the courts but ultimately lost because the new 'owners' were simply able to point to the Land registry title as being their 'guarantee' of ownership. Although he had a good case against the Land Registry mistake, he chased the registered owners instead. It was a mistake that made the lawyers £25,000 richer.

 

[skier-hughes]

I've just read the first post again and if I am reading it right then the council have granted permssion to build upon the right of way.

Can the council do this?

My opinion is still to get qualified legal advice either through your insurers or independantly, but you must also keep at the council.

Graham

 

[Nemesis]

Yes, unless it's a public highway, matters such as this are not planning matters but civil ones.

It has nothing to do with the council.

 

[skier-hughes]

I don't claim any knowledge on this, but what's the point of a right of way if the council can give permission for someone to build a brick wall across it?

It does seem to lack commonsense :roll:

I'm back out to the mains water ditch, successfully passed by water board, now all I have to do is repair all the broken drainage pipes the digger broke!!!

Graham

 

[Flyfisher]

I don't claim any knowledge on this, but what's the point of a right of way if the council can give permission for someone to build a brick wall across it?

I guess it's a consequence of things not being 'joined-up'. I've heard that you can apply for planning permission on land you don't even own, which sounds like a similar thing; councils control planning consents and don't have the time, resource or even the responsibility to look at anything else.

 

[Nemesis]

I do have a fair bit of knowledge. Considerations such as this are not part of planning procedures. It's up to owners to take civil action, not up to the planning authority to take the place of the courts where there is s uch a dispute.

This is unless this is genuinely a public RoW in which case it will be on the Definitive Maps.