Anyone good at access rights laws and deeds of grant?

[Thelongandwindingdrive]

I have a developer trying to get access over my drive. There was a original house house that had access rights. The builder wants to build four houses on its plot

The problem the developer has is that this would be an intensification of use so may not be an easement that is transferable, you need to get proper legal advice though

Thanks. I saw the solicitor I bought the house with and he only skimmed the deed but thought as it's not specific enough, it's something I'd have to challenge in court. However AI seems to think you can't just assume intensication of access points over the drive and this will come up on the new houses conveyancing and as the access isn't clear cut, they wouldn't be mortgageable.

I'm worried I'm going to pay twice for legal advice for nothing. I think I want some reassurance it's worth paying for someone else to look over the deeds again.

What has the developer said or done regarding his assumed access right has he applied for planning permission?

Yes he put in planning for four houses with access off his plot onto the street. This was rejected by highways as they said it created a five way junction. It would in fact just be adding one more drive onto a road with a turning point and twobprivate drives, one of which is mine.

Highways said there's a private road next to the plot so go off that. So new plans have gone in with access off my drive with no consulting with me or checking who owns the land.

I have put this into a public objection but the developer hasn't contacted me yet.

I don't think it's crossed his mind that the person who owns the drive might have a opinion. He is a established very experienced developer so he must have. He did say when he bought the land he will do what he wants with or without my blessing. But that was via a representative and over a year ago.

There is another website called Garden Law. They have boards on subjects like bounderies, rights of way, easements etc. I would strongly suggest that you also raise this issue there as well.

(Also, like with MN, they will likely ask for a diagram as well!)

https://www.gardenlaw.co.uk/phpBB2/viewforum.php?f=8&sid=a42870ffce50940d4477dbb57d3ad8bd

Thank you. The more I think about the more questions I have. Like the boundary lines between the plots need to be St back into each plot to give a better view of the drive. But nothing has been said about the boundary fence between my land and the plot so existing users can see clearly the new access points. Can planning force the removal of this shared boundary fence? Or is that a civil matter as it's all well off the public highway. If they do, it again effects my neighbour but not me so much as neighbours house will then be visible from the road. At the moment the boundary lenses hide both houses from the street.

I can do diagrams if needed!

Planning doesn't look at who owns what. That is a private matter.

Speak to a property dispute specialist. It all depends on the wording of the right of way and as said upthread the rate of intensification.

Also the ROW serves to benefit a parcel of land. If the developer wants to build on land that does not benefit from the ROW then no one can access that plot using the ROW.

Can planning be granted if there is no ROW? I'm wondering when the developer is going to approach me. As presumably he will need each house to have access rights or they won't pass conveyancing for a mortgage?

Same with the fence removal? Surely planing can't order my boundary fence is removed to aid line of sight? Mind you that is what's happening with the other boundary fence. It's being removed in it's entirety

Do you have legal cover with your home insurance? Give them a call if so. Ours we really helpful when I had a boundary query. The insurers might need to know anyway.

Can you get a feel for how your LA manages planning?

Are they proactive in follow up?

Highways said there's a private road next to the plot so go off that. So new plans have gone in with access off my drive with no consulting with me or checking who owns the land.

I would write directly to Highways pointing out that you dont agree to other households and commercial traffic using your drive.

They wont care about the ROW just that they are signing off on a safe junction.

They have already pointed to how that can be done.

Technical point
You have a drive which is substandard as a road

If the drive cant support HGV etc the builder (&new owners) cant safely access the land.

Most planning has a groundworks clause about building roads up to minimum standard.

I think the Builder should have gotten your written permission if the plan is to upgrade the road junction which is on your land.

Object again if you are in time on whatever section fails the application on missing documents

PP is right, planning won’t care about access rights - they can approve the development and then it’s up to the developer to ensure it owns the right land or has the benefit of the right access.

You need to speak to a property litigation lawyer because each easement is specific to its own wording. There are lots of potential arguments about easements and lots of
things that can be wrong about them such as whether they were properly granted , which land they benefit, what specific use is permitted, were they registered etc. But without the specific deeds and specific information about neighbouring properties and what is envisaged, no one can advise you. General advice is not going to work here OP because an easement is a deed that requires its own individual interpretation.

There are two deeds of esement which complicates things. One for us and the developer plot ( looks like they forgot to set up right of way when they sold the land to build our estate so it was added as a afterthought as a separate deed from the other houses access.

This is wording of the deed as I can't seem to upload a photo

SCHEDULE 1
The Rights
The right to use the accessway coloured blue on the plan attached hereto with or without vehicles and the right to connect to and the full right to use all conducting media now laid (or to be laid within 21 years from the date hereof) in or under or belonging to the Owner’s Land and either used in common by the Owner’s Land and the Grantee’s Land and either used in common by the Owner’s Land and the Grantee’s Land and serving the Grantee’s Land with the right on giving 48 hours’ prior notice save in case of emergency to enter upon the Owner’s Land to inspect test repair or replace lay and relay any such conducting media the person entering making good all damage to the Owner’s Land thus occasioned subject to the payment by the persons benefited of a fair proportion of the expenses of cleaning maintaining or repairing such of the accessway and apparatus as shall be used in common

Tbh your first issue is the LA

If no planning is granted across your land you will not end up in court.

Take the day and go through all the applications which have been refused in your local area moving outward from yous house by location and time.

Understand how often safe acccess was a problem and how hardline your LA is and then any other pet hates the planner have.

It doesn’t look like the use is limited at all which is not good news for you but it’s possible there could be arguments about what was envisaged or the use was at the time of the grant. You’d have to look at the surrounding circumstances and the rest of the deed to see if that could be argued.

The fact there are two deeds and a mistake may have been made at the time of grant could make a big difference though as there may be issues over whether the right people were party to the later grant and whether it’s valid at all.

You would have to get specific legal advice on this OP to understand fully the situation - it’s too individual for anyone to be able to give proper advice like this. Im not saying that to fob you off or discourage you, but easements are very particular and you can’t apply general rules to them easily.

As @AnSolas said though, you could focus first on objecting to planning and then seek legal advice only if the planning is granted.

Thanks this is very helpful. There was over 20 objections to this development but it's going ahead anyway. It's East Hants and they say they need more hosing, but thats not true in this particular town. I don't think I'm going to be able to get it thrown out on anything except access. The other users of the drove haven't even objected to the increased use of the drive so that's not helpful. I'm on my own as the land owner.

My solicitor agrees that the deed is too lacking in detail to stand up to say it was for one house. I'm debating if if I want to fork out again to go to a more specialist solicitor. My first solicitor missed lots of details - eg he said next door has no right of way either. They do. Just not on the deed between me and the developer plot. It's on the deed for us and five other houses.

I think I'm going to have to suck up the cost of more legal advice or I will always wonder if we could have done more to block it.

Is there any easy way to find rejected planning applications? The planning portal for East Hants is clunky even to find this development by postcode it comes back as no results found

Yes we have legal cover but just changed insurers this week so not sure going via a new supplier knowing this was already in planning would be a good idea? Or would it?

I'm so out of my depth. Can't even talk to the neighbours as they didn't object to this at any point. The only people who did object don't use our drive. Taking the access off the street will have placated a lot of their objections. However it doesn't alter the traffic or parking issues ( each new four bed house only has two parking spaces)

You need to speak to a solicitor. Have a look at this and the judgment linked in this to see how complicated it can get. Whoever advises you needs more than just the wording of the ROW. Who owns the ROW? Unless you own the land (or part of it) that is subject to the ROW you cannot object to anyone using it.

https://www.falcon-chambers.com/news/parker-v-roberts-2019-ewca-civ-121

Sorry - forgot the link.

I don't think it would matter to the legal bods, it's definitely worth a try, you have nothing to lose.

We own the land.

I thought anyone who had access over could object? Saying that increased use adversely effects them?

Anyone can object to planning applications on whatever basis they like but the LPA will only consider objections that relate to public planning matters, not private matters.

Other people who benefit from easements may have claims in nuisance or for interference with an easement if use suddenly intensifies but it’s very fact sensitive and the claims are quite different from a landowner claiming the person using the ROW is exceeding their rights or doesn’t have the necessary rights.

Local rejections may have includes people using planning consultants or google firms who do that type of work.

Its not likely to be cheap but it will be way cheaper than a court case. The Builder has a sunk cost in the site and a fixed profit ceiling so you want to make it cheaper to buy access on to the other road than fight you.

You want the planners to accept subject to the access is via the suggested road. (And if possible they say greenfield beside your drive with a nice wall.)

That way the ROW is not going to be an issue.

[(Edit)
To answer your actual question🙈
Google post code planning application LA rejected
Any papers running planning lists /ads?
Or go old school and see if the LA have paper copies the day off with map &pen ]

I wish I could upload a image. The developer could run his access parallel with our drive but he can't widen the access as highways have said no that creates a five way junction.

I'd be happy for him to buy us out at this point but that's very unlikely. He bought the plot at just over half the price of my house.