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Overhanging leylandii onto driveway

52 replies

Kew1 · 01/07/2021 11:38

Hi - I'm hoping there may be some property lawyers lurking on here, or someone who has come through a similar issue and out of the other side. I will try to keep it brief and on the advice of another mumsnetter over on the Property channel I am posting the relevant pages of our Land Registry 'Charge Certificate' and some photos.

We share a driveway with our neighbours who carved up their garden and sold the plot to build our house in 1997. There were one lot of owners who bought the new build before us and we are the second owners, moving in four years ago.

For context the neighbour (landowner) is 80 and seems to have some kind of OCD. He has an extreme need for control and literally cuts blades of grass to tidy them. I can give more detail but essentially it is very odd and highly unlikely that somebody of his character would sell land and agree to share a drive. I think he finds it highly stressful in theory (in practice we do nothing out of the ordinary and are very quiet and considerate neighbours). He does a lot of territory marking of the area in front of his house, where the driveway sits and has made us feel that we are driving across his front garden each day. It used to be his front garden before it was concreted over to form an extension of the driveway to our house and we really feel he hasn't moved on from this since 1997. We would have sympathy if this had been done to him, as he is an old man, but he was in his 50s when he sold the land and made a lot of money from it. Plus there is actually no compromise he has to make in reality as you will see from the plans (I think, but I am clearly biased!).

His latest 'antic', which has been a work in progress since we moved in 4 years ago, has been to grow his leylandii hedge over our stretch of the driveway, as shown in the pictures. He obviously kept it back when the previous owners were here but has let it grow over since we arrived. He doesn't like vans coming down the driveway and he has told us that he thinks this deters them and 'slows traffic' (there is no traffic issue and his house is set back as any house would be from a lane or road running past). Anyway, he has told us he has done this deliberately and continues to do it. He still pays the local tree company to cut it each year, they were here 3 weeks ago, but has briefed them (he tells me) to not cut it back hard, even though we asked him explicitly to do this and he agreed. He has told me he then went back on his word and asked them not to do this after all and to leave the height of it uncut this time round. He tells me these things to wind me up as well as saying things like 'don't lose any sleep over it' as a parting shot. He is a nasty character unfortunately.

Our concern is that we won't now be able to get high sided vehicles down the lane and especially fire engines, ambulances and lorries to do our extension next year. (This will be his intention). I believe from reading on the subject that we are the dominant owners of an easement and he is the servient owner. His role is to do nothing to interfere with the easement but he has not responsibility to cut back from the easement either. We have asked to cut the hedge back and he refuses 'do not touch my hedge, do not damage it with lorries coming down' etc. So we are stuck between a rock and a hard place.

Could somebody advise on how on earth we get this hedge cut back so we can regain the full width of the easement granted to us?

A cup of tea won't do it, we are on the tenth cup of tea and he smiles and says it doesn't worry him (which clearly makes me want to throw the tea in his face!).

I will post the legal docs separate post but attached to this are 1) a view from the road down the driveway - neighbour's house is on the left and ours is straight on where you see the timber garage and 2 and 3 are taken from our driveway to show the extent of the overhang (after his cut so this is as good as it now gets without cutting in to brown).

Thanks in advance!

OP posts:
Kew1 · 01/07/2021 17:36

Thanks folks. I just realised it might not have been clear but the only bit of the lane affected is the bit beyond the turn into his private drive (parking area) - it’s the bit we drive on. He keeps the hedges completely off the stretch of driveway he uses. So no probs with emergency vehicles for him! Or the tree company’s lorry that he uses to cut our bit each year (ironically!) They can’t get their lorry up to our bit anymore though so were using ladders this year! The tree company has been ‘looking after’ that hedge for over twenty years apparently. Pretty bad job but their client is happy.

OP posts:
SeasonFinale · 01/07/2021 17:52

(a) Ask the local fire officer if they can check whether they would be able to gain access in an emergency as they may well be able to ask him to ensure that they have access at all times;

(b) find a different lawyer!

(

Kew1 · 01/07/2021 18:04

Will do Seasonfinale thanks, that might at least take a bit of the stress away.

I know ahoyshipmates, that’s why this is so maddening and serious (as far as hedges go), it can’t just be fixed now he’s let it get this far. Unless we end up with that big brown mess. We can prob only take a further 20cm off it now. It took us a couple of years to find out what he was up to, we’ve only been here four. We were really naive! He was loving his old gate out onto the driveway just a smidge every day and for years my husband was convinced it was the wind! Until he finally confessed. We’re so naive (or we’re), we didn’t think we’d moved next to such petty minded idiots. His wife plays good cop but she is also unhinged in her own way.

OP posts:
Greaterthanthesumoftheparts · 01/07/2021 18:23

I was also going to suggest getting the fire brigade out to do a safety check, then have them speak to him. It’s worth a try I think and will be a cheap/free option.

Kew1 · 01/07/2021 18:41

Will definitely see if they will come out - or maybe they can give me a measurement, I would feel pretty bad to use the fire brigade’s time because my neighbour is a moron. But will see what they say. I already said to him this week, during a hideous 45 minute ‘chat’ about emergency vehicles and he just mumbled something about ‘there is no regulatory width to this driveway’. I think any assumption this man will back down is prob optimistic. Although he might be scared by any figure of authority because bullies tend to be. When you picture an 80 year old it is prob misleading - he’s a large and intimidating presence with a booming voice!

OP posts:
Kew1 · 01/07/2021 18:46

I think he will only respond to legal route probably but I want to be clear on two things 1) can we cut a hedge back from an easement where we are the dominant owner and hedge belongs to servient owner and 2) if the full width of the driveway was granted as our easement when house was built and clearly shaded on the plan, are we entitled to this ongoing or can he narrow it?

I’m pretty confident on the second but not on the first.

Any lawyers who could clarify would be great. If it’s more complicated I will have to consult a lawyer in person. Was trying not to for all kinds of reasons, financial but also that it obviously ups the anti on already bad relations and formalises our ‘dispute’

OP posts:
lunar1 · 01/07/2021 20:04

The fire brigade would much rather spend their time to check access to your house than waste time watching it burn while they carry equipment through.

To be honest I'd get it all cut back to the line of the road ASAP. If there is any question about emergency services not being able to get through I wouldn't waste another year watching them grow.

randomkey123 · 01/07/2021 20:15

Honestly, I'd wait until he goes out and take off a small piece each time.

TracysMom · 01/07/2021 20:33

I'd dump a bottle of roundup on it at 3am!

Kew1 · 01/07/2021 21:23

Great ideas. Tempting but he patrols the lane ... with scissors in hand! It’s like a Hedge horror film!!

OP posts:
Clem4579 · 01/07/2021 21:56

There's a website called Garden Law, if you don't find the answer on MN you could try posting on there.

Collaborate · 01/07/2021 22:15

A dominant owner has the right to maintain the right of way and keep it clear. You therefore have the right already to trim it back if it is obstructing the ROW. Just make sure you don’t cut it back further than the boundary of the drive. And you don’t need his permission to do it.

Kew1 · 01/07/2021 22:30

Thank you Clem4579 - I will post on there too, it’s come up when I’ve googled a few times but not exact scenario we are in. Great idea.

Collaborate - are you a lawyer or do you have a source I can refer to on this to be sure? That would be great news

OP posts:
BlackeyedSusan · 01/07/2021 23:43

He has to find the way he is maintaining it and the consequences are worse than maintaining it properly. So deliveries wheelbarrowed/trollied up the dirve in the noisiest way possible.

Hannahcolobus · 02/07/2021 08:59

This reply has been withdrawn

This has been withdrawn by MNHQ at the poster's request.

Californiabakes · 02/07/2021 09:04

The fire service are happy to do fire safety checks, it’s part of their remit (well it is in Scotland, I suppose it might be different in other parts of the UK).

HotPenguin · 02/07/2021 09:05

Just drive through with a high sided vehicle, the branches aren't very strong they will just give way.

Hannahcolobus · 02/07/2021 09:25

This reply has been withdrawn

This has been withdrawn by MNHQ at the poster's request.

Pilcrow · 02/07/2021 09:33

No useful advice from me, I'm afraid, OP, except to second the suggestion of posting on the Garden Law forum, where there's a lot of expertise.

I noticed that speed sign your neighbour had put up and rolled my eyes. We have a local whose obsession with similar signs outside their house has reached epic proportions but at least they're not trying to hamper anyone's access they just object to anybody actually driving vehicles down a public road

Merely reading your post makes me feel anxious so heaven knows how you must feel. Sympathies.

notapizzaeater · 02/07/2021 10:01

Have you get legal cover with your house insurance? Maybe speak to them ?

TheSandgroper · 02/07/2021 13:03

There is also here

legalbeagles.info/forums/forum/legal-forums/housing-property-and-neighbours

But to answer your question, Collaborate is well known on Mumsnet as a lawyer who is always measured when offering the benefit of experience.

Kew1 · 02/07/2021 13:55

I really appreciate everyone’s advice so thank you. It would be far more fun to ruminate over what a twat he is (and thank you for your sympathy Pilcrow) but your are all keeping me on the straight and narrow, so to speak, with some really sensible advice. We will consult our insurance for sure.

Thank you The Sandgroper for confirming that Collaborate is a lawyer. The advice certainly sounds right and sensible. If you revisit this thread Collaborate could you let me know your thoughts on whether, despite having the right to keep access clear, he could still prosecute us for damage to his property, ie, Leylandii? Are there two parts of the law that conflict there or could he not?

With any luck none of this will come to pass but we need to be very confident in what we’re saying when we speak to him due to his irrational and bullying stance.

OP posts:
BlankTimes · 02/07/2021 16:41

One for a trained legal mind rather than mine so do ask, but I'm pretty sure that as far as ownership or legally granted use goes, the line on the plan which is the boundary of your ownership or area of use, means that location on the ground carried straight upwards.

There are variants of that for overhanging eaves and structural things, but none for plants as far as I'm aware.

Collaborate · 02/07/2021 16:43

@Kew1

Thank you Clem4579 - I will post on there too, it’s come up when I’ve googled a few times but not exact scenario we are in. Great idea.

Collaborate - are you a lawyer or do you have a source I can refer to on this to be sure? That would be great news

I'm a solicitor. Just make sure of the precise width of your ROW. If it is the tarmacked drive then don't cut back beyond the edge of that.
Collaborate · 02/07/2021 16:53

If you revisit this thread Collaborate could you let me know your thoughts on whether, despite having the right to keep access clear, he could still prosecute us for damage to his property, ie, Leylandii? Are there two parts of the law that conflict there or could he not?

Taken from Halsbury's Laws:

As a general rule the owner of the servient tenement is under no liability to repair the way over which a right of way has been granted, for such a liability is not a condition incident by law to the grant of a right of way; nor is it even a legal obligation incumbent on the grantee. The person entitled to the use of the way must do such repairs as he requires, and has a right of entry upon the servient tenement for that purpose. The right of repair is not limited to making good the defects in the original soil by subsidence or other natural causes, but includes the right of making the road reasonably fit for the purpose for which it was granted. He is not, however, entitled to make improvements which would benefit his own land to the detriment of the owner of the land over which the right of way is exercised. The servient owner is not prevented from doing acts on his land the result of which may be to render the repair of the way more expensive.

The grantee of a right of way may abate the nuisance arising from the obstruction of the way, whether in whole or in part, by removing the obstruction or as much of it as will enable him to enjoy his right.

Lane v Capsey [1891] 3 Ch 411