Building over a previously fenced boundary

Re: Building over a previously fenced boundary

Postby echo » Thu Jun 02, 2016 10:14 am

jonahinoz wrote:Your register will have a map with a red line around your house and garden. Your neighbour's register will have a red line around his house and garden. Which of the two maps includes the path that you believe is yours? I can't be both, so it must be one or the other ... or neither.

If it is yours, you cannot have a ROW over it ... it is, well ... er ... YOURS. You can fence it up to the boundary, or not fence it if you don't want to. Deciding on the location of the boundary should be by discussion with your neighbour, as legal arguments over boundaries can cost many tens of thousands of pounds. Do not be bloody minded over a few inches.


jonahinoz wrote:If the path belongs to your neighbour, it seems you do have a ROW over it.


Yes, the path across the end and down (most of) the far side of my neighbours garden (shown in white on the diagram) is definitely mine. It is shown in red on my deeds and was confirmed during (and after) conveyancing.

The ROW I have is over the path at the side of my neighbours house that it leads on to.

The issue I have is working out where my path stops and his garden begins, both at the end and around the sides.
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Re: Building over a previously fenced boundary

Postby echo » Thu Jun 02, 2016 11:55 am

nothingtodowithme wrote:3) Can you lawfully build over a previously fenced boundary?
3) You can lawfully build abutting the boundary.


The diagram below shows a top down view of my path as if you were stood at the house end facing down the garden.

Image

The path is made up of large single slabs, to the left is a large boundary fence with common ground on the other side, and to the right is where the boundary with my neighbours garden is.

The first image shows roughly where the original fence (on the right) was situated. Note that it is the distance between the path slabs and the original fence that is the unknown here.
The second image shows how the neighbours have paved over where the original fence was - this is over the boundary rather than abutting it? or does that not matter as it's paving rather than a structure?

I guess there is the possibility that the large paving slabs that make up the path actually denote the boundary themselves? Although I would have thought there would have been a small gap at least (as I've shown on the first image) between the slabs and the dividing fence?
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Re: Building over a previously fenced boundary

Postby Collaborate » Thu Jun 02, 2016 5:25 pm

The presumption is that whoever owns the fence will build the fence up to the edge of their land, and that anything beyond that is not their land.

The Land Registry advise that if the deeds are silent as to who owns the fence or boundary feature then they presume that ownership is shared - although this is only a presumption and can be rebutted by evidence.

That is why you need to look at the deeds for both properties.

If their paving slabs have encroached beyond where the old fence used to stand then they have encroached on to your property. Hopefully you have some old photos that will indicate how far over they have encroached.
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Re: Building over a previously fenced boundary

Postby jonahinoz » Fri Jun 03, 2016 8:04 am

Hi,

I would argue that my side path was as wide as the access between your neighbour's house, and the end of the next house, and my back path was as wide as the gap between the back of his playhouse and the boundary on the far side of my path. Being a reasonable man, with a benevolent nature, I might eventually settle for both paths being a smidgen wider than my back gate. I would also have in mind the many tens of thousands of pounds that it might cost to fight it in court. You cannot get anything wider than the gate into your garden anyway, so you have little to gain.

The point where your path meets your RoW over your neighbour's path is more critical to him than you. If your fence meets his conservatory, he will have no access for his wheelie bin. Your requirement is for unrestricted, uncluttered, and unlocked gate for access/privacy, with a fence along both his and your boundaries, so you don't get savaged by the big dog that he plans to buy next week. :D I suggest that you (reluctantly) agree to having a gate where convenient to your neighbour, in return for there being an extra bit of fence/gate between the back of his conservatory, and your gate. In effect, your Row will be fenced from his garden, too. Get an agreement in writing, about access, clutter, padlocks, etc. and measurements of the location of the boundaries of your path. Maybe he would be willing to pay for your fence and gate, erected to your satisfaction, but thereafter maintained by you.

There, now you are a nice bloke, but that's quickly changed.

You have not said when these houses were built. Many older houses had the easements (RoW) passing under the back windows. Was your house ever like that? What arrangement do other houses nearby have? Your access layout is longer, but less intrusive on your neighbours. I wonder if previous owners have changed the layout, formally, giving you ownership of your path, but formally closing your RoW across the back of his house. That could scupper his plans to build a conservatory. Would any experts like to comment? You need a copy of your neighbour's Land Register, to see if you have any rights not mentioned on your register.

Would the conservatory be built over existing drains, and if so, which way does the water flow? You do not want any blockage backing up into your property. Rainwater from the conservatory should go into a soakaway. In older properties rain water usually goes into the main sewers (best place for it, in my opinion). Is there room in the garden for a soakaway?

If you live in an older house, it is likely that the footings for the new conservatory will need to be dug deeper than your foundations. If so, your neighbour should serve a Party Wall Act notice on you, following which, you can (if you wish) appoint a surveyor at HIS expense to oversee the construction, and note any damage that occurs to your property. The worst case scenario, is that your neighbour has to pay for three surveyors. Google PARTY WALL ACT.

I understand that the PWA gives a developer the right to excavate for footings UNDER neighbouring properties. I can't say I like that idea, but then, I'm not a developer.

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Re: Building over a previously fenced boundary

Postby echo » Fri Jun 03, 2016 8:26 pm

Once again, thanks to everyone for their input.

OK, so I have a (not the best) copy of the original plan with the neighbour's property outlined in red, which I have orientated and shaded as per my diagrams on the first page.

Firstly, you can see how my access path is outside their garden (and it is bordered in red on my deeds).

Secondly, there are fence markers showing that the original separating fences are the responsibility of my neighbour, and so I presume this means they were on his land?
But I note though that the main fence (on the right) between our gardens also seems to 'belong' to him, but in reality (following the line of my house) is actually on my land? So how does that work?

Thirdly, the access path fence seems to have been in line with side of the neighbours house, so could that mean that then that all land outside the line of the house is part of my path and therefore mine?
If that's the case, then I would have at least a 6inch gap to the side of my paths paving slabs with which to erect a fence on.

Forthly, the copy of the plan is pretty bad so I've no idea what all the symbols and marks mean, can anyone see anything significant?

Fithly, and unrelated, the bigger boundary fence on the left of my path and running down past the neigbours house has a T mark projecting into my path. But If I follow that fence out to the front of the properties where it is all the neighbours land, there is no other T mark anywhere. What does this mean? Exactly how much of that fence am I responsible for ?!

Image
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Re: Building over a previously fenced boundary

Postby jonahinoz » Sat Jun 04, 2016 8:56 pm

Hi Echo,

Looking at the maps, there is a dotted line running across the back of the three houses shown. It appears to be about 3 metres from the backs of the houses. The line turns, and runs down the middle of the path at side of No.33. There is a circle where the line changes direction, which I assume is an inspection chamber. That chamber is on YOUR path, but it is not possible to say how far your gate is from the chamber. I assume the dotted line indicates a drain, but I don't know if it is rainwater or foul water. Somebody here will know.

When water in a drain leaves your property, the drain becomes "public". I don't know if that applies to rain-water drains. ??? Does rainwater off the roof count as surface water? As you have water entering your drains from No.35, your drain is also "public". I'm relying on the experts to correct my assumptions and phraseology.

There are dotted lines each side of the drain running along the side of No.33. I don't know what they mean. ???

I feel that the location of the drain at the back (and side) of No.33 are in the worst possible place for building a conservatory, but that's not your problem. If No.33 builds beyond that chamber, he cannot exit his property without using a part of your path, and the gate. You can lock the gate, as he has no right to use it

My understanding (but hey, what do I know?) is that the "Ts" indicate that the responsibility for a boundary feature lies with the property on which the "T" is drawn. So, No.33 seems to be responsible for all three fences around his back garden. You appear to be responsible for the fence between you and No.35, the fence along the rear boundary, and the fence down your path opposite No.33's fence. You cannot demand that No.33 erects or maintains a fence along the boundaries, but you can erect a fence on your side of the boundaries, provided it is on your property. How far are the slabs from the fence along your path?

I suggest that your neighbour could be very vunerable to your displeasure, and that you have the opportunity to be benevolent, and in return earn some benefits .... like a new fence and gate, and their maintenance. I would consider moving your gate to behind the inspection chamber, so IF it needs attention, all the work is done on his property. It may be worth setting the gate back from the end of the fence, so that your neighbour can move your empty wheelie bin onto your path, without opening the gate. Maybe you could suggest that his short side fence is set in, so he can park his wheelie bin without blocking your ROW?

Good luck,

John W
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Re: Building over a previously fenced boundary

Postby echo » Mon Jun 06, 2016 7:51 pm

jonahinoz wrote:Looking at the maps, there is a dotted line running across the back of the three houses shown. It appears to be about 3 metres from the backs of the houses. The line turns, and runs down the middle of the path at side of No.33. There is a circle where the line changes direction, which I assume is an inspection chamber. That chamber is on YOUR path, but it is not possible to say how far your gate is from the chamber. I assume the dotted line indicates a drain, but I don't know if it is rainwater or foul water. Somebody here will know.


That must be for rain water then, as where the dotted line comes back to meet my house is exactly the place where my drainpipe goes into the ground. So the inspection chamber must be buried under a path slab then, as there's nothing visible on the surface?

My other neighbour has a conservatory extending just over 3m from their house, so unless the rain water drain is further down the garden, I assume it can be built over? Although their conservatory is a smaller squarer type with no brick work, so possibly the foundations are minimal, but maybe it can be built on.


jonahinoz wrote:There are dotted lines each side of the drain running along the side of No.33. I don't know what they mean. ???


I assume they simply indicate the path, as the way they turn 90deg at the front of the house and then turn 90deg away from the house at the front follows the pathway exactly.


jonahinoz wrote:I feel that the location of the drain at the back (and side) of No.33 are in the worst possible place for building a conservatory, but that's not your problem. If No.33 builds beyond that chamber, he cannot exit his property without using a part of your path, and the gate. You can lock the gate, as he has no right to use it


I'll certainly be pointing that out in my consulation comments, but given that the front extension they wanted to build previously would have also completely blocked them as well, I'm not sure they really care... and neither does planning law apparently. I guess potentially they could add a side door to the conservatory which would at least mean they wouldn't have to go through the whole house to get to the back garden.


jonahinoz wrote:...but you can erect a fence on your side of the boundaries, provided it is on your property. How far are the slabs from the fence along your path?


That's the plan, it's just confirming what is and isn't my land. At the moment, looking at the plan, it seems like the boundary is in line with the neighour's house - so are they allowed to build following that line or must they build it back slightly? If the above is true, I'd say there would be ~6inch gap between my path slabs and the conservatory.
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Re: Building over a previously fenced boundary

Postby jonahinoz » Tue Jun 07, 2016 8:21 am

Hi Echo,

I'm sorry, but I think we've reached the end of my limited knowledge, but hopefully you now know a bit more than you did.

The Land Register has confirmed you DO own the path, although not where it bends, but apparently after it passes the bend in the rain water drains.

You know who is responsible for which boundary features (eg: fences), but also know that you cannot insist on your neighbour actually erecting a fence.

From what I can find in Google, your neighbour IS allowed to build over the rain-water drains, but there are requirements to be met. I don't know if Building Regs require a small conservatory to have a soakaway, or link into the existing drain, or nothing at all.

When were these houses built ... which might indicate the materials used for the drains. I would be concerned that any disturbance of an old drain might cause flooding in your property.

Will your neighbour be building himself, or contracting.

I don't know if your neighbour is allowed to block your path, or your RoW over his path while building his conservatory. I don't think he has the right to enter your property in order to build, but he may have rights to enter for maintenance after it is completed.

There is no fence between your path and your neighbour's garden, so presumably no gate either. Is there a post that you could a hang a gate on, albeit without a post for it to slam against? That might act as a declaration of where you consider your path ends.

Google PARTY WALL ACT, and study to see how it affects your neighbours plans. Add LEGAL ASSISTANCE to you house insurance. Tell your Council Planners that you want to be advised of any planning (including Permitted Development) applications. My previous council's declared policy was to NOT advise neighbours of Applications for Residential Development that were next to existing residential property.

Over to the experts.

John W
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Re: Building over a previously fenced boundary

Postby echo » Mon Jun 27, 2016 9:03 pm

As an update for anyone interested...

Objections were submitted from myself and the other neighbour that was also part of the consultation. Sadly, as expected, all objections were ignored and prior approval was given. The 'neighbour consultation scheme' of a GPD seems to me to be just a sham, there's clearly no objection that can be made that will result in the rejection of a proposal. Interestingly, the difference between not needing prior approval, and needing prior approval & being granted approval, was just 3 days.

Also interestingly, whilst the delegated report recommends that 'prior approval is required and approved', the actual decision notice states 'no representations that objected were received therefore prior approval is not required'. I have taken this up with the case officer, and of course it's been more than 3 days and I'm still awaiting an answer.

But anyway, I realise that any followup complaint will just be a waste of time, so I am now left with the only option of re-fencing my path before the extension is started.

jonahinoz wrote:I would argue that my side path was as wide as the access between your neighbour's house...


Does anyone else agree that this a reasonable thing to argue? It seems so to me from the plan.
The path does bends a bit at the top, before it turns across the rear of the neighbour's garden, so could it be argued that the path should be the same width the whole way around?

Also, does a 'T' mark against a fence indicate ownership or just responsibility, and is there a difference?
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Re: Building over a previously fenced boundary

Postby Collaborate » Mon Jun 27, 2016 10:07 pm

echo wrote:
Does anyone else agree that this a reasonable thing to argue? It seems so to me from the plan.
The path does bends a bit at the top, before it turns across the rear of the neighbour's garden, so could it be argued that the path should be the same width the whole way around?

Also, does a 'T' mark against a fence indicate ownership or just responsibility, and is there a difference?


Seems fine to me. Go ahead and do it as quickly as possible - get it done in a day before they come home from work. It seems to me that the boundary is in line with your neighbour's side wall.
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Re: Building over a previously fenced boundary

Postby MacadamB53 » Mon Jun 27, 2016 10:19 pm

Hi echo,

does a 'T' mark against a fence indicate ownership or just responsibility, and is there a difference?

ownership (and therefore responsibility) is established only if the words in the deed make reference to the 'T' mark as being an indicator of ownership.

Kind regards, Mac
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Re: Building over a previously fenced boundary

Postby Collaborate » Mon Jun 27, 2016 10:46 pm

MacadamB53 wrote:Hi echo,

does a 'T' mark against a fence indicate ownership or just responsibility, and is there a difference?

ownership (and therefore responsibility) is established only if the words in the deed make reference to the 'T' mark as being an indicator of ownership.

Kind regards, Mac


I don't entirely agree. If the T marks are said to indicate responsibility but are silent as to "ownership", it must be assumed that responsibility equates to ownership in the absence of a covenant to maintain and repair, as in the absence of a covenant there is little to no point in establishing responsibility without indicating ownership.
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