Right of Way and New gate

Right of Way and New gate

Postby marine1983 » Tue Oct 18, 2016 1:34 pm

Hi,

We have access to our property across the neighbors land. It used to be 1 farm but was sold off separately. The land owner wishes to place a gate across the track which I have lined in red. This is due to his dog running out onto the main road and attacking cyclists and livestock from his house which is to the left of the picture. The track is steep and un-kept. Our concern is trying to stop on this hill open the gate and then try to get going again.

We have also been given planning permission for 6 safari tents and a caravan and camping site. We cant expect a member of the public to stop on a down/up slope while towing to open a bloody gate. He could easily secure his perimeter to keep the dog in check. He has signed documents stating that he is happy for the site and no objections were raised at the time of planning.

I have attached a copy of the deeds to help with your information. We feel he is in breach of the covenants as it mentions that an annoyance is not allowed. I understand gates are a grey area as they are seen as an annoyance rather than a restriction. Though we feel that if he does indeed gate the drive it not only impacts us, but also members of the public and our business.

The track is narrow as it is, we have had builders wagons down the track. Its tight but certainly achievable. Having gate posts installed will narrow it even further.

There is a also a public right of way across our fields to a SSSI woodlands. This is granted so the forestry commission can get access to do maintenance. Will he need planning permission for the new gate.

Any thoughts on our legal position would be very appreciated.


Edit

Hmm not sure how to attach images as they are to large
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Last edited by marine1983 on Tue Oct 18, 2016 2:11 pm, edited 1 time in total.
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Re: Right of Way and New gate

Postby SwitchRich » Tue Oct 18, 2016 1:46 pm

You have to post four more times to be allowed to post images unfortunately.
Unless you host them elsewhere and link to them you will need to post 4 times more and then it should work.
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Re: Right of Way and New gate

Postby marine1983 » Tue Oct 18, 2016 1:48 pm

I tried to link them. It wont allow links in my posts. I guess 4 posts is not to difficult to achieve hopefully.
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Re: Right of Way and New gate

Postby marine1983 » Tue Oct 18, 2016 2:12 pm

managed to compress the deeds. But cant get the track picture small enough which would aid the discussion.
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Re: Right of Way and New gate

Postby marine1983 » Tue Oct 18, 2016 2:52 pm

seem unable to edit the first post. Here is the track picture.
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Re: Right of Way and New gate

Postby despair » Tue Oct 18, 2016 3:12 pm

i think gates would be an unreasonable obstruction of the row unless the posts are outside of the current lane width and are electric
a judge would need to see it the same though

best bet is to persuade him to secure his own boundaries as a dog owner its his responsibility to retain his dog and freedom to attack anyone on the row is not allowed
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Re: Right of Way and New gate

Postby MacadamB53 » Tue Oct 18, 2016 3:51 pm

Hi marine1983,

photos can be deceptive - that particular stretch of the track does not look at all steep.

Kind regards, Mac
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Re: Right of Way and New gate

Postby marine1983 » Wed Oct 19, 2016 5:57 pm

Well the hill is steep enough to not to want to stop towing a caravan to open a gate!

The photo is purely to give a perspective on the proposed gate. I'm after peoples opinions from reading the deeds and the location.
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Re: Right of Way and New gate

Postby mr sheen » Wed Oct 19, 2016 7:23 pm

Since this a rural agricultural area and agricultural business is a reasonable expectation on a farm, or former farm, personally I think you would have difficulty proving that the gate is a substantial interference to the granted rights that the deed provides for.

It may be considered tantamount to prioritising your needs due to increased use of the track that your business plans require, over the needs of the owner of the track to keep his livestock contained.....this would not go down well in court since you expect increased use of the track but expect the owner to manage his business interests without impacting on your....think you would have quite a fight on your hands and very little sympathy from the Judge and therefore risk having costs to pay.
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Re: Right of Way and New gate

Postby marine1983 » Wed Oct 19, 2016 7:31 pm

but the gate is not for the protection of livestock. All the fields have stock proof fencing. Its to stop his wild dog chasing cyclists down the road which is an issue in its self. He is not a farmer, I agree his land is used to graze sheep let out by a local farmer. It states in the deeds that any nuisance is not allowed. A gate is an annoyance and also a safety factor.

I certainly would not want stop my car and trust a handbrake with a caravan attached up or down hill. I would of thought that highways would certainly be interested in his decision as it directly affects members of the public and our approved planning permission?

I could be way off on my opinion as I will of course have a bias.
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Re: Right of Way and New gate

Postby mr sheen » Wed Oct 19, 2016 7:57 pm

Nothing to do with the council.
You are concerned with what you 'certainly wouldn't want to do'. This is not the measure in court.

The court will want to assess whether the gate is a 'substantial interference' with your right to pass and repass. Each case will be considered based upon the circumstances. Gates are normal in rural areas and the fact that there is agricultural activity on the land will be considered relevant. He will probably be able to show that the gate would be beneficial to the protection of livestock (for info - farm dogs can sometimes be categorised as livestock).

You can ask for automatic opening on the gate. Perhaps try to reach a reasonable compromise.
In reality you probably don't have much choice since it will be a very expensive risk to pursue this along a legal route.
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Re: Right of Way and New gate

Postby marine1983 » Wed Oct 19, 2016 8:11 pm

ok thanks for your assessment. Although the difficulty we had with getting approved by highways they certainly would be interested. However that would probably be a detriment to our cause.

I guess common sense does not prevail in courts then. It would be just as easy for him to secure his garden so his dog didn't get out.

I guess would we have a stance if the gate posts narrowed the driveway?
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Re: Right of Way and New gate

Postby MacadamB53 » Wed Oct 19, 2016 8:47 pm

Hi marine1983,

It would be just as easy for him to secure his garden so his dog didn't get out

there could be a whole host of alternatives for him to choose between - that is irrelevant.

the option he's decided upon is a gate across his track.

the width isn't stipulated in the deed, but he ought not to narrow what is already available - I'm sure that's possible.

the "no nuisance" is something you're burdened with, not him.

Kind regards, Mac
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Re: Right of Way and New gate

Postby mr sheen » Wed Oct 19, 2016 8:51 pm

Only if the width is specified in the deeds will reducing the width with the posts be an issue that can be immediately complained about. No such specification appears to apply in this case, so you are back to the legal measure of 'substantial interference' and if you can still pass and repass then you have no legal basis for complaint.

The council cannot interfere with this civil dispute about the rights on private land. If your planning was granted on the basis of issues relating to this then you are the one with the problem. Your planning issues cannot be forced onto anyone else.

The fact of the matter is that the landowner is able to use his land as he wishes subject to the constraints of the easements and rights of others. He can use the lane how he likes as long as he does not 'substantially interfere' with your right to pass and repass. There is no common sense assessment applicable, it is a legal assessment of rights. These rights have been bought and paid for somewhere along the lines and are part of the property.
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Re: Right of Way and New gate

Postby ukmicky » Thu Oct 20, 2016 12:07 am

Annoyance clauses are very hard to enforce.


Your idea of an annoyance may also not be that of a court.
Advice given is not legally qualified and you are advised to gain a professional opinion
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