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Please help.... Planning application using my driveway

(41 Posts)
Threetofour Sun 01-Sep-13 23:35:36

Was just wondering if anyone could offer any advice on a legal dispute with my neighbours, within our deeds there is an agreement for our neighbours to have access with or without vehicles across our driveway for the use and enjoyment of their property, we have had problems with them because of this in the past but hey ho we knew the deal when we bought the house

They have now submitted a planning application to build another house within their garden which would use our driveway as its sole access & the front of our house would essentially be someone else's drive. We still own the land so do we have the right to legally fight this?

We have 30 days to submit any complaints about the planning application & I need to put forward as strong a case as possible, they are absolutely adamant that this would be covered by the covenants within the deeds but I cannot see how this could be possible, our house would lose a massive amount of value & I believe it would make the front of the house unsafe for our children

I am losing sleep over this so any advice would be much appreciated! Thankyou for reading....

Lonecatwithkitten Mon 02-Sep-13 07:11:17

I would suggest as timescale is so tight you do best to get legal advice. From what little I know of property law they will splitting their title to achieve this. The small amount you will pay for advice will less than any value affect on your property.

Lethologica Mon 02-Sep-13 07:23:45

I too would get proper advice. It is too serious a matter to trust to forums. (Although you could try the 'GardenLaw' website)

I would love it if you let us know how you get on as I am really curious smile

Good luck.

Lethologica Mon 02-Sep-13 07:25:58

GARDEN LAW rights of way.

Thistledew Mon 02-Sep-13 07:34:46

I would also suggest you get some legal advice, but in my limited knowledge you should be able to block this. If they are intended to create a building that will be a separate property to their one already in existence then the easement (right of way) over your property that exists would have to be granted by you to the new property. If you refuse to grant it, they would have no lawful way of accessing the new building from the road once it is created as a separate title.

Do get legal advice though as I say this not having looked at any plans and not knowing about local planning regulations and by laws.

Threetofour Mon 02-Sep-13 07:45:06

Thankyou all very much I am also going to seek legal advice and will keep you updated! I hate all of this..... Never wanted to be in conflict with my neighbours, I get the feeling they are desperate as they already had planning refused on a dwelling with a different access point

Thanks very much for responding!

LIZS Mon 02-Sep-13 07:47:04

The council won't take the ownership, or otherwise, of the land into account for pp purposes. You can lodge objections on basis of poor access, general safety issue, out of keeping with area, etc (loss of value and covenants are not perceived as reasons to deny) but would need to take legal advice as regards the proposal to simply use your drive for a 3rd party. If you can get a solicitor to write to them to say the assumed access over your drive won't be permitted the application may not proceed anyway.

ResNullius Mon 02-Sep-13 07:56:32

I also think you should seek expert legal advice as a priority.

FWIW though, I believe your neighbours are correct in their thinking, and objection re increased use of the right of way is unlikely to hold water, because the increase could just as easily be caused if they decided to own 7 vehicles themselves, or rent out some of their rooms to other people. The building work is also irrelevant in nuisance terms as they could easily argue that similar disruption would be caused if they were to concrete over their garden - which they are quite within their rights to do.

There are grey areas .... utility supply etc...and that is why you really should see a specialist.

I have known cases to be won because the access from the driveway onto the road is already less than ideal in terms of safety, so it would be well worth looking at that aspect to see if it could be argued. Many older houses have drives which would not now be allowed because turning out is just plain dangerous.

Sorry OP.
Spend money on the best lawyer you can afford.

Threetofour Mon 02-Sep-13 10:03:37

Thanks res my thinking was that the covenant within the deeds only applies to their use of the property it would not extend to an extra property? I believe that they are trying to gain planning permission in order to sell the land to someone else with the planning already agreed rather than use the dwelling themselves iykwim with regards access they already have about 7 vehicles & have rented out that land to friends with caravans etc so we've had it all! Had no idea of the level of use when we moved in as the vendors of our house were less than honest but that is our fault for not checking more carefully!

Lethologica Mon 02-Sep-13 11:20:08

I would also check if you can add a gate to your drive. A gate does not nessecerily amount to an 'interference' of a right of way. You would obviously have to check the wording of your covenent and with a solicetor but it might help reduce the use of the right of way by your nieghbours.

Threetofour Mon 02-Sep-13 11:32:15

Thanks Lethologica that's a good idea! Up until this point I have been trying to be neighbourly not ruffle feathers etc but it seems the give & take doesn't go both ways, they like to sit their trailer right outside our front window for hours and made us move the removals van on the day we moved in as it was blocking their access.... As we were half unpacked of course,also made us move our car at 10pm on Christmas Eve because they needed to get to their trailer, they have access to their garage on their own drive as well as space for 5 cars, lots of territory marking behaviour, neither of them work so it is not like they need to use the trailer on such a regular basis sorry this is all irrelevant but they drive me mad!

Have contacted a number of solicitors this morning as well as my local councillor & some neighbours who are also opposed to the planning. Hoping for strength in numbers! Thanks again everyone for taking the time to reply

Collaborate Mon 02-Sep-13 12:51:57

Have a look at the wording of the easement. Sounds as if the right of way will survive the sale of part, but remember it's a right of way only, so they have no right to park there. They will have no more right to go over the driveway than they do at present.

Get from the Land Registry a copy of yours and your neighbour's title together with the plan. That will tell you which part of the drive they can go on. I don't know whether the right of way attaches so as to benefit the whole of the neighbour's land or just a part of it.

SignoraStronza Mon 02-Sep-13 12:52:22

I know someone who owned a semi, plus the whole driveway and one of the semi detached garages (separate from the houses) on the driveway.
They parked their campervan in front of their garage, the tenants in the adjoining property parked their car in front of theirs.

Until one day, the revolting tenants decided that they'd object to the camper being parked there and kicked up a stink (as well as vandalising the camper - obviously can't be proven).

It eventually transpired that, actually, no-one had the right to leave a vehicle on the drive but merely to drive into their respective garage (both of which were used for storage). So the complainer shot themselves in the foot really. Owner of the house eventually bought the adjoining house when evil tenants moved on so can do what they bloody well like with the driveway.

OP, it might be that actually, no-one is allowed to park on the drive -might be worth looking into that.

Threetofour Mon 02-Sep-13 19:30:59

Thanks again people! The right of way is to provide access to maintain the garage or to an extra bit of their garden, ehich is also reachable through their garage hard to explain but they have an L shaped piece of land broken in the middle by their house & garage, the land they wish to build on is currently unused but counts as part of their garden

Their house & garden was originally built in the garden of our house so was wondering if there is a case for overbuilding on one site as they are essentially building a house in the garden that was built on the garden of another house iykwim

Thanks again so much for the advice & interesting on the no parking thing you could be right we were always told that we just had to move when they asked us to but part of me wants to just Tarmac another bit of our garden so that we don't need to park on that bit

Collaborate Tue 03-Sep-13 08:01:58

OP can you draw plan and post it on here!

Collaborate Tue 03-Sep-13 08:02:18

Oops. Meant ? Not !.

Threetofour Tue 03-Sep-13 08:47:38

Yes I have a diagram so could photo & post to my profile would that work?

Collaborate Tue 03-Sep-13 08:57:19

I think so. Could you copy and paste the wording of the right of way as well?

TripleRock Tue 03-Sep-13 09:08:44

My instinct is that it would be an unauthorised enlargement of the existing easement (and therefore preventable by you). However someone needs to see all the papers before arriving at a proper opinion.

However this is not up to the council to enforce. It would be between you and the neighbour directly.

Not sure if the council will take it into account as part of their planning decision or not?

prettybird Tue 03-Sep-13 10:07:44

Not a specialist at all, but would it be possible to object to the planning permission on the basis of lack of access given that you won't be providing it ? At least it makes the council aware that there is an issue. Also, get your councillor involved.

Agree with the other posters who say get good legal advice.

LandRegistryRep Tue 03-Sep-13 12:46:32

The issue of the right of way is clearly one which needs to be considered by a legal adviser - as others have mentioned and as you already appreciate the wording of the right (easement) will have a large bearing on the matter.

In general terms any rights attach themselves to the land so that if the land is split in two the rights stay with both parts so in theory a right of way could still be enjoyed by both parts in this case.

However, if the right of way was for a specific and stated purpose for example to gain access to the garage then you can already see how the benefit of that right may be limited.

You also refer to covenants but if any exist these will most likely to what cannot be done on the property although they could relate to the right of way for example 'not to block the right of way at any time, night or day'

As collaborate mentions you should confirm the registered position re the properties and the right of way and then seek legal advice. You can get a copy of the title(s) online but bear in mind the details re the right of way may be contained in a deed/document which has to be obtained by post. http://www.landregistry.gov.uk/public/property-ownership

The planning process is likely to take into account access to the new property but there is no direct link betwene the planning process and land registration. A legal adviser should be able to help with this as well whilst the planning department or LA website should offer guidance on the procedures involved.

At this stage the planning process is likely to be the main focus as without planning permission the house does not get built and the right of way issue does not arise.

Threetofour Tue 03-Sep-13 14:02:20

Ok thankyou land that does make sense, when I spoke to the planning officer they did say that the planning permission just states that a house MAY be built not that it can and that if access was refused it would not go through anyway is that correct?
Do you think we will end up having to go to court about the right of way? we are so not in a position to afford this at the moment.... Well 5 weeks away from the arrival of child 4!

Threetofour Tue 03-Sep-13 14:02:36

Also just about to post pics!

LandRegistryRep Tue 03-Sep-13 14:36:33

As mentioned the land registraiton and planning processes are not linked so I have no specific knowledge around the planning side of things but can only speak form experience around the issues raised with Land Registry.

Planning will give the ok that a building may be built. I suspect what they meant was that if after getting that permission they had no right of access then they would be unlikely to proceed.

Your solicitor will be able to advise as to a) the meaning of the rights as registered and b) the posisbilities re resolution etc.

If the right of way is in dispute then it is a matter of law and it's interpretation. That interpretation can vary between people and any final say would rest with the courts. The ideal situation is where all sides agree to a resolution or their legal advice matches so going to court is less likely.

I would strongly recommend pulling the informaiton together and then seeking legal advice, perhaps through a CAB nominated solicitor, to get a 'feel' for possible outcomes.

Collaborate Tue 03-Sep-13 14:41:42

You'll need to change your settings I think so that people can click on your name.

prettybird Tue 03-Sep-13 14:47:28

You could also set up a Flickr account using your MN name and upload the photo there and put a link on here.

Threetofour Tue 03-Sep-13 15:30:07

ok thanks all will have to wait till later as husband has taken all the documents to work so he can speak to the solicitor! Hopefully they will be able to tell us if we have a chance or not

I know land the covenants and property register reads like gobbledigook to me.... it states that they have a right to pass and repass with or without vehicles at all times on one part of our drive but also that the part they are talking about using they have a right to pass and repass with or without vehicles but it doesnt say at all times... oh I dont know will keep you updated and thanks for posting

SuedeEffectPochette Tue 03-Sep-13 21:22:34

I am sorry that this issue is causing you stress. You need to instruct a solicitor to advise you about excessive user. I will copy and paste some information for you below.....

Excessive user
It is an established principle that the use of the easement must not exceed that which was granted or acquired. Broadly, the use of an easement can be considered in three different, but overlapping, ways:
The nature of the use.
The purpose of the use.
The amount of the use.
These three aspects are frequently looked at in the light of the character and identity of the dominant land. Excessive use is usually considered in the context of a servient owner who acknowledges that an easement exists but is objecting to the way in which it is now being used, probably as a result of changes to the dominant land over a period of time.
Conflicting case law on excessive user
Unfortunately, the case law on what amounts to excessive user has been somewhat contradictory. Many of the cases are still good law.
To illustrate the discrepancies that have arisen, consider the two following cases:
In Giles v County Building Constructors (1971) 22 P & CR 978, two houses on the dominant land were served by a right of way. The owner intended to demolish the houses and build a three-storey block of six flats, a bungalow and seven garages. The court, perhaps surprisingly, held that this development did not involve a change in the character or identity of the dominant land and an excessive use of the right of way was not established.
In McAdams Homes Ltd v Robinson [2004] EWCA Civ 214, the issue was whether an implied easement could be used for the benefit of the two houses erected in place of a bakery. The Court of Appeal held that it could not. In this case, the redevelopment of the bakery and its change to residential use was held to be a radical change and, on the evidence, there would have been a substantial increase in the use of the easement.
Neuberger J commented that where a radical change in the use of the dominant land occurred after the easement had been established, a prescriptive right of way could only continue to be used if the change would not result in the use being "greater in quantum or different in character".
McAdams Homes case considered
In the leading case of McAdams Homes the Court of Appeal had the opportunity to consider, and try to reconcile, some of the conflicting case law.
The Court of Appeal issued guidelines on the extent to which an implied easement can continue to be used where the use of the dominant land has changed and/or additional buildings are constructed.
Two questions have to be answered:
Does the development of the dominant land represent a radical change in its character or a change in its identity, as opposed to a mere change or intensification in its use?
Will the use of the dominant land, as redeveloped, result in a substantial increase or alteration in the burden on the servient land?
Where the answer to both questions is "yes", the dominant owner's right to enjoy the easement will end, or at least be suspended for so long as the radical change of character and substantial increase in burden are maintained.
For more information on the McAdams Homes case, see Legal update, Implied easement - increase in burden on servient land.
For more information on excessive use resulting in the termination or suspension of the easement, see Practice note, Easements: termination: Excessive use.
Very shortly after McAdams Homes, the Court of Appeal again had to consider an extension of the use of an easement. In Hotchkin v McDonald [2004] EWCA Civ 519, a right of way was expressly linked to the lawful use of the dominant land and that use was governed by certain restrictive covenants.
The Court of Appeal had to consider the possibility that the restrictive covenants could be modified under section 84 of the LPA 1925. For more information on the modification of restrictive covenants, see Practice note, Restrictive covenants: Lands Tribunal.
Despite the attempt in McAdams Homes to establish a general test to establish excessive use, the Court of Appeal held that the possibility of modification was relevant when considering the circumstances that existed at the time of the grant. One of the circumstances existing at the date of imposition of the restrictive covenant was that it may not be legally possible to fix the use of a property forever. There was always the possibility that the restrictive covenant could be modified under section 84 of the LPA 1925. The Court of Appeal decided that, in these circumstances, a right of way could continue to be used in connection with the lawful use as modified. This would presumably be the case even if the modified use would otherwise have satisfied the tests in McAdams Homes. For more information, see Legal update, Effect of modification of a restrictive covenant on a dependent right of way.

Threetofour Thu 05-Sep-13 16:36:01

Thankyou so much to everyone! Just to update I inadvertently made their application void.... Phoned the planning dept to speak about the access & they asked me if I had been notified in writing I said no just verbally so the council rejected the application.... Has given us some extra time at least although neighbours are raging with us now but I didn't do it intentionally! Our solicitor is looking over all the papers now & is going to let us know if we have a chance of fighting the access, thanks so much for all the advice

pongping Thu 05-Sep-13 16:54:52

Whoops! grin

Oh dear, He should have checked all his facts first then shouldn't he.

Threetofour Thu 05-Sep-13 19:56:47

It is bringing a most uncharitable smile to my face I must admit smile

Collaborate Thu 05-Sep-13 22:12:31

Do report back what your solicitor says.

missmartha Fri 06-Sep-13 12:29:06

This has probably been said as I haven't read trough he entire thread but, you should seek the opinion of a planning consultant (look online).

You need a weighty reply that cannot be ignored by the LA planning officers.

Once you have a planning consultant on your side, you will not need to look elsewhere to support your response.

A PC will cost a few hundred £, but is well worth the expense.

Threetofour Tue 10-Sep-13 22:53:17

Thanks miss Martha! Things are looking better my councillor is firmly on our side and has advised the planning officer that they should reject the application, I am really hoping it can end here but if not we will be going to committee to argue against it

Following this though I am getting a gate & going to hopefully split our properties a bit more, it may not affect their use of the access but definitely helps to feel that we are in charge of our own property!

Terrortree Mon 16-Sep-13 11:44:09

Hi three to four,

It is possible that I could face a similar situation in future (someone has a right of way to field across my land) and if they wanted to build on it (unlikely), then surely I'd have to give up around 1/2 acre of land for them to build a road for access?

Thus I'm following your thread with interest, so please do keep it updated.

Thanks in advance.

friendlyguy1000 Mon 16-Sep-13 17:35:38

after reading this post I cannot stress how important it is to contact your local unitary authority counsillor. If you live in a parish, or a small town, you will have a local parish counsillor get him/her on board. and go to the housing and planning council meeting. Most people do not understand that if they attend the planning meeting the only opportunity for the public to speak, is in the first few minutes, where the meeting is suspended for normally 15 minutes so that members of the public can speak. if you miss this opportunity to say your piece you will not be allowed to speak and your objection will not be heard. i also suggest apart from speaking at the meeting that you put your objection to the meeting in advance, in writing. remember that the grounds for objecting can only be based around planning, ie parking, too many houses, too crowded, lack of access, and that the plans are not in keeping with the area, or in line with goverment guidelines. Things like house values, light etc, will tend to be ignored by the planning committee, but you could always make an argument about lack of privacy, if the planned house overlooks, or looks into your house. Once the Parish or town planning meeting is over, it then goes to the unitary authority, this is where the planning submission is posted on line. Something like 5 or 15 e-mailed objections can get the planning submission in committee so that the planning officer will not make the desicion alone, but this varies from council to council, if you ask the planning officer, they will tell you. then go and speak to this meeting in the public forum. Note that the fact that there is an objection by your local parish council will normally count as one objection, you speaking at the unitary authority meeting will count as another! good luck and understand that all councils work differently, s talk to the Clerk!!

Threetofour Mon 16-Sep-13 21:45:28

Thankyou so much friendly this is very good advice

I am in touch with my councillor, he has contacted the planning dept and recommended that the application be denied on the basis of inappropriate access arrangement, he is hoping that the app will be rejected on this basis but if not he will call the committee & we will be invited

Thanks everyone so much for your responses

zipzap Tue 17-Sep-13 21:21:53

Not sure if this has been said by others more fluent in legalese than I am - but is there anything in the deeds of your house that mentions charges or anything about the land that has been taken off your plot to make their plot? Fingers crossed that there will be something about land taken off to make a house rather than to make houses...

Hopefully your solicitor is knee deep in the covenants in their deeds and they were written to be restrictive enough of further development but fingers crossed there might be something in yours too (although whether if it is just in yours it can be held over them I have no idea).

fingers crossed that you manage to stop them from doing this.

Threetofour Tue 24-Sep-13 12:40:04

Update
the planning application has gone in again & I have put my comments in to the council although they are not yet published

Shitting myself to be honest as they will be raging, we discovered that the specific width of the easement is 8 feet which would not allow access for construction vehicles or IMO be safe as a shared driveway..... The area is also grassed which is stated in the deeds and we have said we will not agree to it being tarmacked, basically thrown everything we can think of in there plot size, street scene, disturbance & loss of privacy etc I am desperate to get the plan refused as due baby in 2 1/2 weeks now & can't bear the thought of a legal battle, I get the feeling things will get ugly with neighbours but we are thinking of getting a fence/ trellis specifically on the 8 foot boundary to stop them using it..... Nightmare!!
I have contacted two solicitors now & still waiting on a response they have been useless tbh so may go elsewhere, they keep fobbing us off with them "looking through the documents" I think they don't actually know where we stand

UnexpectedItemInShaggingArea Tue 24-Sep-13 22:24:12

Fingers crossed for you OP, not what you need right now.

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