Avoiding the obstruction of a right of way

Avoiding the obstruction of a right of way

Postby MikeJG » Sun Jun 04, 2017 9:20 am

WK436183 comprises no.s 131 and 135 on the main Warwick Road and a builder's yard at the rear.
131 was a large 3 storey builder's merchants and is attached to a public house.
135 is an end terrace and is attached to or is very close to 5 other properties. It is not attached to 131, there is a 4.5m wide, 50m long passageway between 131 and 135 which gives access to the builder's yard and over the rear of the 6 properties 135-145
The whole was sold by Warwickshire County Council to Grafton Merchanting in June 2014 and after a short usage was sold onto Traegarren (a local developer). It was sold with planning permission to build 12 properties on the builder's yard with the demolishen of 135 to facilitate a 8m passageway. This was approved by all concerned.
However shortly after buying the property the developer applied to change the access width to 4.5m which would enable him to keep 135.
This new planning application was withdrawn because it did not meet the Highways Authority standards and another application submitted which met the standard, sort of, it includes the demolishment of the front porch of 135 which gives exactly 5m for 7m off the main road, with then 4.5m for 50m.
This latest application was refused because there was no consideration given to pedestrian access but, at the planning meeting a local councillor suggested that a 1m pavement would be adequate.
We all now expect the planning application to be forwarded once again with a 1m pavement and 3.5m roadway.
However we bought a 12 ft right of way on 11 Jan 1932 when we sold off the bottom of our garden to create no. 133 (now accessed a different way). Since 3.5m equates to approx. 11.5ft this new plan (if and when it is submitted) will violate our right of way.
So the question arises; what action can we take to prevent this happening?
Just to add a little confusion the registration WK436183 excludes the passageway and therefore the developer can say that he is unaware of our rights.
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Re: Avoiding the obstruction of a right of way

Postby arborlad » Sun Jun 04, 2017 10:41 am

This would be better as a continuation of one of your other threads - rather than starting a new one.
arborlad

smile...it confuses people
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Re: Avoiding the obstruction of a right of way

Postby MikeJG » Sun Jun 04, 2017 11:12 am

I did consider that this was very similar to a previous post but that was more focussed on a neighbour not maintaining the width of access. In the end I let this ride since it became clear that houses would be built on the old builder's yard and all the trees that were causing the obstruction would be taken down. Planning permission was granted for housing which clearly showed the access being cleared of trees, etc. behind our houses and being 8m wide for 50m up to the point where it joins the new development to the main road.
However reducing the 8m to 4,5m came to a planning committee last week and was rejected and it was suggested to the applicant that he built a 1m pavement and make the roadway 3.5m wide.
Hence I think my question is new.
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Re: Avoiding the obstruction of a right of way

Postby despair » Sun Jun 04, 2017 1:26 pm

you need to ensure in writing that both the planning officer in charge and the developer know without question that you have a specified width of ROW and that this development breaches that

surprised you had not already done that ...copy your local councillor too

and check all your mortgages,insurances,credit cards for legal expenses cover
it does not matter that your ROW is missing from the registration for builders yard its still a legal ROW signed sealed and must be delivered
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Re: Avoiding the obstruction of a right of way

Postby jdfi » Sun Jun 04, 2017 2:08 pm

Mike,

A caution is registered over the land between 131 and 135. Presumably that is your caution?

Image

If so, whose is the second caution? I'd suggest downloading both titles and plans asap.
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Re: Avoiding the obstruction of a right of way

Postby despair » Sun Jun 04, 2017 4:17 pm

i hope the poster has legal expenses cover because he might need it PDQ
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Re: Avoiding the obstruction of a right of way

Postby MikeJG » Sun Jun 04, 2017 4:37 pm

Thank you folks for some good input.
The plan that was submitted to planning committee last week was for a 4.5m wide passageway which is acceptable from a deeds perspective. It was rightly turned down from a pedestrian safety aspect.
The planning people say that they are not interested in any new comment on the refused application suggesting that I save myself for an expected new application that reduces the road width with pavement. In anticipation I am trying to gather information to defend against this and indeed will inform the authority of the deeds requirement as soon as I can but am concerned that they might ignore it (planning recommended that the planning committee grant the application and were slightly, perhaps unintentionally biased towards granting, again a comment I am told should be carried forward).
I am happy to ask the neighbours to share in some legal expense if necessary but I have no idea how to go about it.
I was unaware they I had a caution over the land but this makes sense since I wrote to the Land Registry in 2011 asking who owned it, so they probably added me to the list. WK425669 and WK436739 had cautions at this time.
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Re: Avoiding the obstruction of a right of way

Postby jdfi » Mon Jun 05, 2017 7:22 am

Is the access you have a clear vehicular access? Considering that even a HGV is around 2.5 metres wide, reducing your access from 8m to 5m may well not be seen as a substantial interference.

Have you downloaded the two caution titles?

I would download for every adjacent property (including the 133 thats shoved up the top).

Local research may help you identify the legal owner of the passage.
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Re: Avoiding the obstruction of a right of way

Postby MikeJG » Mon Jun 05, 2017 9:29 am

jdfi, I sometimes think that I cause confusion in providing too much information, trying to be helpful but....
The issue here is how do I go about preventing a violation of a right of way? There is a clear expectation that the developer will reduce the width of a 50m long shared access drive down to 11.1/2 feet when my deeds show the purchase of a 12ft 'right to pass and repass' in 1932. The owner of the land is Tregerren Ltd, a local developer. I don't think that there is any dispute over who owns the land but because it is unregistered the owner is unaware of the right.
I know the developer representative by name and have his phone no. He also presented his case at the planning meeting last week. I met him then but did not realise that the modification suggested to his plans would impact the width of access to below 12 feet.

Reading what people have said leads me to believe that I should raise this as an issue when the next planning application is registered. OK, but I am left wondering what action can I take to add weight to my argument or what process must I go through to exert my rights if people will not listen.

Currently the developer has permission to create an 8m road and pavement but this includes the demolition of a house (135). He is trying to modify the development to maintain the house (which is extra profit). I can see that it might be difficult to demolish the house after he gets permission to reduce the access width and has sold it on. I am trying to prevent this.
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Re: Avoiding the obstruction of a right of way

Postby despair » Mon Jun 05, 2017 12:48 pm

12ft down to 11 ft 5inches might just be seen as de minimus

however if that 12 ft is going to be down to 8ft because a pavement is going in that might be entirely different

planners are not normally concerned about legal niceties because anyone can apply for planning on land they do not even own
so restrictions and ROW in deeds are not part of planning

stupid i know but thats the situation and hence why its so vital to have protection of legal expenses insurance in order to get help in a myriad of situations
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Re: Avoiding the obstruction of a right of way

Postby jdfi » Mon Jun 05, 2017 2:24 pm

MikeJG wrote:The owner of the land is Tregerren Ltd, a local developer. I don't think that there is any dispute over who owns the land but because it is unregistered the owner is unaware of the right.
I know the developer representative by name and have his phone no. He also presented his case at the planning meeting last week. I met him then but did not realise that the modification suggested to his plans would impact the width of access to below 12 feet.



Well hang on. Have Tregarren previously granted access over their land to the owner of the development site? If not, assuming they can prove their ownership, they are able to control what happens to it.

Arguably you have a line of legal redress from Tregarren should they do something that affects previously-given rights.

On the assumption that what you really want to do is to stop the new builds going ahead, I wonder if you ought to get some advice on your entitlements, which may assist you in grounds to oppose the planning, alternatively to invite either Tregarren or the developer to pay you off to buy part of your rights? Depending on the specific advice, of course.
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Re: Avoiding the obstruction of a right of way

Postby MikeJG » Mon Jun 05, 2017 3:06 pm

Neither my neighbours or myself want to stop the development, our only interest is ensuring that the access is wide enough to let us go about our business and my current concern is to understand how I/we go about preventing a reduction to the 12 ft width purchased in 1932.
I have absolutely no idea how one resolves these sort of issues and it is perhaps this degree of ignorance on my part that is confusing, all I am looking for is some sort of 'contact this sort person' advice.
You have been helpful in persuading me that I/we can enforce the width but before I talk to the developer (who is also the owner of the property) I would like to suggest to him what further action I/we will take if he ignores us.
I have also written to the Land Registry to ask them why they haven't asked for the land to be registered
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Re: Avoiding the obstruction of a right of way

Postby MacadamB53 » Mon Jun 05, 2017 3:21 pm

Hi MikeJG,

you own a property that benefits from a ROW over another - and this is a defined 12ft wide route.

until such time that some act actually affects the rightful enjoyment of the ROW there's not much you can do.

however, if you have clear evidence of an intent (e.g. the planning application) you could seek an injunction to prohibit the works.

does that make sense?

Kind regards, Mac
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Re: Avoiding the obstruction of a right of way

Postby MikeJG » Mon Jun 05, 2017 3:39 pm

Mac, makes a lot of sense, How does one go about getting an injunction?
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Re: Avoiding the obstruction of a right of way

Postby MacadamB53 » Mon Jun 05, 2017 4:07 pm

MikeJG wrote:Mac, makes a lot of sense, How does one go about getting an injunction?
you cannot "get" an injunction.
rather, one may be granted by a judge as an outcome of a court case.

you're best course of action is to book a free half-hour consultation with a suitably qualified sols (property law) to discuss.

Kind regards, Mac
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