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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....

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

wheredidiputit Thu 05-Sep-13 17:34:53

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

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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