Right of way - intensification/interpretation

Right of way - intensification/interpretation

Postby saxondown12 » Thu May 11, 2017 4:57 pm

A Deed of Easement was granted over a private road owned by a Parish Council in 2001 as follows:

“So far as the Parish Council can lawfully grant the same a right on foot and with private motor vehicles and vehicles used in connection with the operation of a stud/livery/stables/riding school to pass and repass over and along the Parish Council’s land for the purpose of gaining access to and egress from the Freeholders Land.”

The use of the word "and" separates out all 3 forms of permissible transport - on foot, with private motor vehicles & riding school

In 2001 there were two residential houses on the freehold land.

The land now has the benefit of planning permission for an additional 5 residential houses.

There is no other form of access to the site other than the Council owned private road.

Are the additional 5 houses covered by the 2001 Deed of Easement for a right of way onto the land ?

I shall be very grateful for any opinions
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Re: Right of way - intensification/interpretation

Postby MacadamB53 » Thu May 11, 2017 5:33 pm

Hi saxondown12,

that deed granted a ROW for all the dominant land.

if that dominant land is subsequently divided up each portion has the ROW.

doesn't matter how many houses - what made you think it might?

Kind regards, Mac
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Re: Right of way - intensification/interpretation

Postby saxondown12 » Thu May 11, 2017 5:44 pm

Many thanks Mac

An intensification of use over and above the ROW granted by the Deed in 2001.

When the Deed was granted in 2001 there were only 2 houses on the land.
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Re: Right of way - intensification/interpretation

Postby mr sheen » Thu May 11, 2017 6:13 pm

Yes. All relevant freeholder land covered.
The deed grants a right to pass and repass over the relevant track/land to reach every inch of the other land no matter what is on that land, as Mac has indicated. 2 houses, 500 houses, it's irrelevant.

Only the owner of the land can take action against anyone that they believe is excessively using the access...but with a deed granted as indicated, action would be fruitless. The deed is specific in granting all rights of way for anyone passing to and from the freeholders land.
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Re: Right of way - intensification/interpretation

Postby saxondown12 » Sun May 14, 2017 9:50 am

My understanding is that a ROW is given according to the use at the time of grant - so increasing use from 2 to 500 houses must be relevant and an abuse of the originally ROW ?
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Re: Right of way - intensification/interpretation

Postby MacadamB53 » Sun May 14, 2017 1:52 pm

saxondown12 wrote:My understanding is that a ROW is given according to the use at the time of grant - so increasing use from 2 to 500 houses must be relevant and an abuse of the originally ROW ?
even if there was no house the dominant land can be visited over and over and over and over via the ROW - your understanding is flawed.

Kind regards, Mac
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Re: Right of way - intensification/interpretation

Postby mr sheen » Sun May 14, 2017 7:08 pm

Use at time of grant....Right to pass and repass to said land occupied by houses.
500 houses later.....right to pass and repass to land occupied by houses...where is the abuse of the right of way?

Unless exclusions are specifically included in the deed of grant, then access to the whole land is assumed and if access was for houses it is for infinite number of houses unless there were specific exclusions and restrictions outlined specifically in the deed.

'Excessive use' of a right of way is very difficult to prove since it is assumed that a right of way once granted is exactly that a right to pass and repass with NO restrictions. If it was the intention to restrict use of the right of way these restrictions would have been expressely reserved and noted in the deeds in 2001 when the right to pass and repass was granted. No specified restrictions in the deeds is assumed to mean 'unrestricted' right of way.

You appear to be confusing a prescriptive right of way with a grant of right of way. Where a right of way has developed via prescription over many years, the use at the time of achieving the right is relevant but again this is difficult to prove if you are trying to suggest a restriction applies.
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Re: Right of way - intensification/interpretation

Postby arborlad » Thu May 18, 2017 9:26 am

arborlad

smile...it confuses people
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Re: Right of way - intensification/interpretation

Postby pilman » Fri May 19, 2017 2:22 pm

I had just posted to one of the other postings made by saxondown12, in which I gave an explanation of how to apply for a prescriptive easement.

I then looked at this posting and saw that arborlad had referred to three other postings which all relate to the same situation.

The mention of a 1922 deed required a simple answer.
"to use for the purpose of traffic on foot or with wheel- borrows or other suitable vehicles the roads or paths bounding the premises"
That deed was capable of granting a vehicular right of way over all land owned by the Grantor at that date. Whether the "roads and paths bounding the premises" were owned by the Grantor is not yet known.

Another grant was made by the Parish Council in 2001.
“So far as the Parish Council can lawfully grant the same a right on foot and with private motor vehicles and vehicles used in connection with the operation of a stud/livery/stables/riding school to pass and repass over and along the Parish Council’s land for the purpose of gaining access to and egress from the Freeholders Land.”
The first point is what use was the "freeholders land" put to at the time of that grant ?
The second point is was that the same parcel of land referred to in the 1922 deed?

Why did the council include a specific mention of use by vehicles going or leaving a commercial premises used as "a stud/livery/stables/riding school", when other postings by saxondown12 imply that the land was occupied by two residential properties.
In 2001 there were two residential houses on the freehold land.
If that was the situation in 2001 when the Council granted a right of way, which may have been unnecessary if the right of way already granted in 1922 served that same parcel of land, then the use for residential use is the use authorised by that 2001 deed.

There was no limitation on the number of residential properties that could be located on that parcel of land.
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Re: Right of way - intensification/interpretation

Postby arborlad » Sat May 27, 2017 9:30 am

arborlad wrote:You should ask Admin to merge all your threads:

viewtopic.php?f=8&t=20771

viewtopic.php?f=8&t=20772

viewtopic.php?f=8&t=20780





With multiple threads come multiple issues...........and now you've started another one!!

It's far from clear what you are asking and what you want to achieve, for example - do you wish to build 5 houses or do you wish to prevent 5 houses being built?

Do you own multiple properties with multiple issues around each one, in which case you need to find a way to differentiate one property from another.

If you only own one property, it's very much in your best interests to have all of your threads merged - and not start another one.
arborlad

smile...it confuses people
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Re: Right of way - intensification/interpretation

Postby span » Sat May 27, 2017 10:31 am

He's an idiot. He thinks if he keeps asking the same question he'll eventually get an answer that he likes.

An idiot, behaving idiotically.

But the biggest idiots are us lot who keep responding to him.
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Re: Right of way - intensification/interpretation

Postby saxondown12 » Mon May 29, 2017 6:45 pm

Message for "Span" reads:

So a layman in legal matters doesn't format questions in the manner you approve or even dares to ask too many questions are all justifiable reasons for personal abuse, right ?
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