right of way

[skier-hughes]

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.

It still seems to lack commonsense to me.... unless I'm looking at it all wrong, but if the council took acount of the RoW and refused planning permission there would be no need for courts.

Same as if your neighbour said he wanted to build a wall in your garden, surely you'd object, the council would refuse and that would be it, you wouldn't expect to have the council look at your objection, grant planning and you have to go to court to get it overturned.......

I'll have to go read garden law a bit I think, but it'll have to wait until the rain comes

 

[Nemesis]

No, it's not up to the council to decide ownership issues. That's for the courts to decide.

All the local authority has to decide is the planning issue - which has nothing to do with land ownership disputes.

 

[Gareth Hughes]

That issue is actually quite handy. Imagine you're a developer (I know, I know, you feel dirty already) and you want to built 1000 houses on a site. You'd be mad to buy it, then apply for permission, not knowing if you were going to get it.

Or, imagine you're a local authority wanting to force the hand of (or help out) the owner of a neglected listed building who claims there's no economic use for it and no money for repairs. Someone with a bit of imagination comes along and puts in an application for a viable new use the owner hadn't, or wouldn't, consider. Bingo, the property suddenly has a rosier future.

 

[Lime]

No, it's not up to the council to decide ownership issues. That's for the courts to decide.

All the local authority has to decide is the planning issue - which has nothing to do with land ownership disputes.

Exactly.

If and where the ROW exists is a civil matter and is of interest only to those who claim ownership of it.
It is up to the ROW owner to enforce it.

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.

how clear does the point have to be made?

Don't take legal advice and the ROW will be lost.
Nobody else cares except the owner of the ROW and if it isn't defended it will lapse into history.

 

[Nemesis]

Actually - you can appeal against planning permission in many circumstances - but this isn't one of them.

 

[Lime]

Actually - you can appeal against planning permission in many circumstances - but this isn't one of them.

Yes.
However, reading between the lines, the council were referring to the ROW claim.

 

[Nemesis]

Well yes, but I felt I ought to place this on record as it's not a general principle.

You can appeal against a council's refusal to grant you planning permission, and there is a right for third parties to either seek a call-in (where matters of public interest are concerned and there is a belief that the permission granted goes against national policies) or individuals can seek judicial review in similar circumstances.

What can't be done is appeal simply because you don't like it.

 

[Flyfisher]

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.

That issue is actually quite handy. Imagine you're a developer (I know, I know, you feel dirty already) and you want to built 1000 houses on a site. You'd be mad to buy it, then apply for permission, not knowing if you were going to get it.

Although risky for the developer since it will cost them a lot more to buy the land once it has PP than without it - unless they hope the land owner wouldn't notice the PP (which would surely be tantamount to fraud?).

Or, imagine you're a local authority wanting to force the hand of (or help out) the owner of a neglected listed building who claims there's no economic use for it and no money for repairs. Someone with a bit of imagination comes along and puts in an application for a viable new use the owner hadn't, or wouldn't, consider. Bingo, the property suddenly has a rosier future.

Or, imagine you're the taxman who decides that the field you're about to inherit might be granted PP in the future and then use its vastly inflated 'hope value' to stitch you up for additional IHT, even though you may have no intention to sell the land for building (and even if you did you'd have to pay CGT anyway, so the taxman would get his cut eventually).

It all gets complicated when other people/bodies can interfere with your own property

 

[Nemesis]

Although risky for the developer since it will cost them a lot more to buy the land once it has PP than without it - unless they hope the land owner wouldn't notice the PP (which would surely be tantamount to fraud?).

Not really - it's not so simple, and usually in this case there are legal agreements in place to prevent this (if the would be developer is wise).
I don't think the tax man can use a crystal ball either.

 

[lolly5]

Have to say what a great bunch you are - brilliant responses and advice we're following up tomorrow.
Have an appointment at the Land Registry and we're taking all the papers and will be on the phone first thing to find out about the insurance.
Nemesis - really value your comments as you obviously have some experience in this area.
Can see that the Council would not want to get involved in private matters, but a commonsense policy would be to not grant planning permission until both parties had formed agreement - for instance they could state that Land Registry documents should be consulted prior to applications and included with the application or that both parties had to agree on where boundaries lay before permission could be granted.
It seems like a 'head in the sand' approach without some sort of enforcement.
Suppose it keeps them out of trouble......

 

[Nemesis]

You could take this up with the government and ask for the law to be changed, but the current system is what all councils have to work with.

They can't get involved in what are private legal disputes.

 

[Flyfisher]

I don't think the tax man can use a crystal ball either.

You might want to read this then, unless you're not bothered about IHT planning.

You might also want to read this extract from the taxman's own manual, particularly the 3rd bullet point.

 

[Nemesis]

Actually no I'm not - I'm leaving my millions to charity.

But 'hope' value is a complex issue really.

 

[Flyfisher]

Fair enough, as long as it's an informed choice :wink:

 

[skier-hughes]

Can see that the Council would not want to get involved in private matters, but a commonsense policy would be to not grant planning permission until both parties had formed agreement - for instance they could state that Land Registry documents should be consulted prior to applications and included with the application or that both parties had to agree on where boundaries lay before permission could be granted.

See that's my commonsense arguement in a nutshell.

I look forward to hearing how you get on.

Graham

 

[Nemesis]

Like I said - take it up with the government because it would require a law to be passed.

And there could be vexatious neighbours who not agree to anything. That could bugger up a legitimate planning application.

 

[skier-hughes]

But surely a vexatious neighbour with a legal piece of paper saying they have a right of way over a piece of land that the council are deciding on an application is different to one who doesn't?

I know the law can be an ass, and I'm not doubting you, but it just seems silly to me.

I'm off to start a petition, anyone want to sign it :lol:

 

[another_richard]

First, I cannot work out where the row is? Does it run between both your houses, down the side? Or is it access at the back running past their house and yours? have they encroached onto it by grabbing an extra slice? I read it runs across their garden but which part?


If it was a Public Public ROW open to all motp then it must have been awarded at some point through historical documentation. If so then it would be on the List of Streets, definitive map, from their response I guess it is not and so I guess it sounds like you have an Easement. From my experience the ROW in question - 'granted to authorised persons in all respects as a public right of way or passageway', is for public use by those who bound the ROW. Depending on where the row is situated, running between the two houses, (essentially splitting them) then you may be entitled to half (a moiety I think it is called).


Have you consulted any of the historical documents? Inclosure has the power to award a public right. The information may probably come from (though not originate) the 1910 Finance Act mapping, Here, the onus was on the original owners to state a right of way existed so a tax rebate could be claimed.

If it is public public (sorry this sounds ridiculous) then it is not legal to build a wall across a public right of way unless it can be proved it has not been in use for a set period (20 years if my memory serves me well).

If it is (and I think it is) an 'easement' then it seems this is a fight between you both and I guess that this is a long winded way of confirming the obvious.

 

[Nemesis]

'Once a highway, always a highway'. Proving abandonment is not simple. This has not been abandoned however.

Public RoW can be historic or they can be claimed through modern usage. Not all ancient RoW are as yet on definitive maps.

But yes I agree this sounds like an easement, not a puplic RoW, which should be registered with the Land Registry.

However, at times it's not really straightforward. The first thing is to check though what the registration says.

 

[lolly5]

In answer to Another-Richard

First, I cannot work out where the row is? Does it run between both your houses, down the side? Or is it access at the back running past their house and yours? have they encroached onto it by grabbing an extra slice? I read it runs across their garden but which part?

This is how it looks -
The right of way runs from the main road outside next door's house down through the centre of their garden and in a consistent width ( which we believe to be 8 feet because of our old deed drawings ). At the end it meets a second section which bears off to the west at a right angle, which is unregistered land. ( Actually next door tried to include this in their boundary when they submitted their planning application, but it was amended when we objected - apparently the Council are interested if the boundaries of the owned property are shown incorrectly ).
This second section is also part of our right of way and leads to our garden and that of the neighbour the other side of us who also uses the
right of way.
Our house is sandwiched between the two end houses of the terrace with the row passage running alongside the wall to the neighbour's house on the end of the terrace, so we are one house removed from the right of way - this is why it's there as we have no other access to the back garden.

What the neighbour says is that the row should be measured from the wall of the house the other side of the passage ( which wasn't there when the house was built ). If this measurement were the true starting point then this would prevent us from turning west with a car into the second row section as there is a brick wall jutting out on into the land at this point.
The neighbour is currently assuming they are correct and is parking across the row every day - car half on and half off.
However, if we are correct ( and according to our drawings we would appear to be ) then the measurement from the neighbour's wall means that the west turn is possible with a car as the brick wall is not in the way and the neighbour should not be parking how they are.

The proposed wall given planning permission has been drawn in favour of the neighbour's idea of where the row should be measured from.

Hope this is described well enough to understand.
Thank you for all your comments so far !!
p.s. how do you get the text to show with a white background when you are referring to someone else's post please ?