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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.

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.

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