Avoiding the obstruction of a right of way

Re: Avoiding the obstruction of a right of way

Postby mr sheen » Thu Jun 08, 2017 9:28 am

MikeJG wrote:
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.


This needs to be brought back to the actual issue since it has migrated into an issue of land registration and cautions.
The OP has a deed granting a 12foot right of way. The details of this need to be reviewed in detail with exact wording being given consideration.
No further PP has yet been submitted so speculation suggests that the width of the ROW may be at risk as part of the PP. However PP and a ROW are completely different issues. PP can be granted on land owned by someone else or subject to private rights. If PP is granted, then you will have to seek to recover any losses from the developer completely separate from planning. The issue is how much will the losses be? You may be talking about reducing the ROW by a few inches and a court may consider that this doesn't amount to a substantial interference so what is the land lost actually worth and this may be awarded as compensation and may be small or even de minimis as already indicated by despair........costs however may be substantial and if the court considers the matter trivial OP will be penalised with some or all costs for having bright the matter to court
One option would be pre-emptive negotiations with the developer to sell them the few inches for as much as you can get.
Last edited by mr sheen on Thu Jun 08, 2017 9:48 am, edited 1 time in total.
mr sheen
 
Posts: 2075
Joined: Fri Feb 27, 2009 3:33 pm

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 

Re: Avoiding the obstruction of a right of way

Postby MikeJG » Thu Jun 08, 2017 9:46 am

I feel I am walking on ice......
I have consulted a property lawyer who suggests that he investigates the matter and writes a letter to the planning committee. He quotes £300 which seems a lot of money to read a few sentences and write a letter. But I will discuss the issue with the neighbours
.
Can anyone tell me when a developer is committed to an approved plan. Half an hour ago 3 men turned up and started taking down the trees that form a boundary between the passageway and old builder's yard., this is not the part of the passageway discussed so far. This is in the approved plan (and all subsequent attempts at changing it). We have stopped them since there are nesting birds in the trees and, of course n notice was given.
MikeJG
 
Posts: 62
Joined: Wed Oct 13, 2010 5:05 pm

Re: Avoiding the obstruction of a right of way

Postby jdfi » Thu Jun 08, 2017 6:53 pm

MikeJG wrote:I feel I am walking on ice......
I have consulted a property lawyer who suggests that he investigates the matter and writes a letter to the planning committee. He quotes £300 which seems a lot of money to read a few sentences and write a letter. But I will discuss the issue with the neighbours


Can do it yourself. Start with contact to the owner of the burdened land (Tregarran or whatever). Phone then follow up by recorded delivery letter. This senior member has given you some good advice. I emphasise about checking insurances (you and neighbours)

despair wrote: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


MikeJG wrote:Can anyone tell me when a developer is committed to an approved plan.


Arguably never: the granting of PP does not suggest they are obliged to actually build. They can pause and then submit an amendment if they wish, or allow it to lapse.
jdfi
 
Posts: 443
Joined: Wed Jun 06, 2012 10:39 pm

Re: Avoiding the obstruction of a right of way

Postby jdfi » Thu Jun 08, 2017 7:03 pm

jdfi wrote:
MikeJG wrote:I have also written to the Land Registry to ask them why they haven't asked for the land to be registered


This bit is easy. Presumably Tregarran Ltd (can't find on companies house, so you may wish to check spelling etc) have owned this accessway since before compulsory registration (if they were the grantor in 1932 that would support the same) and havent undertaken voluntary registration.

It may be in their interests to now register their land, however.

Regarding your 12 foot entitlement, do you have the exact wording of the deed?


To be clear, are you saying that Trengarren Ltd granted the right of way in 1932? The current ltd co was only formed in 2006!

If Trengarren are the current developers then disregard most of what ive said.

You need to know (not necessarily tell us here) the name of the persons or company who granted you your ROW in 1932. Then check whether that party (or heirs) is trading.

If not then things will be harder for you.
jdfi
 
Posts: 443
Joined: Wed Jun 06, 2012 10:39 pm

Re: Avoiding the obstruction of a right of way

Postby MikeJG » Thu Jun 08, 2017 7:16 pm

I do not recall saying Tregarren granted the right, I listed 3individuals in quoting from my deeds, they presumably owned the land in 1932 and are long gone by now. One of the Cautioners owned the builder's yard in 2007, his caution was to ensure his row if the passageway was registered. The other buildings I presume belonged to others, I would suggest one a private house and the other was The Kenilworth Business Centre. Around 2007 Warwickshire County council bought the lot in order to re-home Buildbase who occupied the land now being developed as Kenilworth station. It was meant to be a swap but they couldn't get planning permission!
MikeJG
 
Posts: 62
Joined: Wed Oct 13, 2010 5:05 pm

Re: Avoiding the obstruction of a right of way

Postby jdfi » Thu Jun 08, 2017 10:48 pm

MikeJG wrote:I do not recall saying Tregarren granted the right, I listed 3individuals in quoting from my deeds, they presumably owned the land in 1932 and are long gone by now.


Its my mistake and I apologise for it.

If they were easily traceable they could be called into action and potentially sued as needed.

At least you have a clear story and set of documents to take to a solicitor.
jdfi
 
Posts: 443
Joined: Wed Jun 06, 2012 10:39 pm

Re: Avoiding the obstruction of a right of way

Postby pilman » Sun Jun 11, 2017 6:28 pm

'Together with a right for the purchaser and his successors in title to use for all the ordinary purposes of a road the twelve feet road coloured blue on the said plan leading from the property hereby conveyed into Warwick Road aforesaid the purchaser and his successors in title paying a proportionate part of the expense of keeping said road in repair'
Having just read through this posting, I must admit that it is unclear what is intended to be the use of this accessway if a developer obtains a different planning application to the one already granted.

Currently the development of the old builders yard has to have an 8 metres wide accessway, but now this poster tells us that a revised application for a 4.5 metre wide carriageway has been refused, although a local Councillor has expressed a view that there ought to be a footpath that will be 1 metre wide alongside a carriageway that would be 3.5 metres wide.

The original poster has already confirmed that no further application has yet been made.
We all now expect the planning application to be forwarded once again with a 1m pavement and 3.5m roadway.

In the event that a further application will be put forward, the end result "may be" that a 3.5 metre wide carriageway and a 1 metre wide pavement is acceptable to the Highways Authority for the area and that the local planning authority will grant permission for this road to access a development of 12 new houses, as well as allowing access to all the other local properties that have a right of way over the 12 feet wide "road" referred to in the poster's own title.

One thing that does need to be made clear is that a road with a width of 3.5 metres will not allow two cars to pass each other. The minimum width of road that will allow that to happen is 4.1 metres. A minimum width of 4.5 metres will allow a car and a van to pass each other, and many LPA's now allow a 4.5 metre wide road that is constructed to its full width using paving blocks to access a development of up to 25 houses. That type of road is in fact adoptable, with many such roads now providing access to modern developments. The whole width of 4.5 metres is intended to be shared by vehicles and pedestrians so that no raised pavement is required.

If I was asked to express a professional opinion as a director of a planning consultancy company, I would say that a 3.5 metre road with a separate raised pavement of 1 metre will not be granted planning permission to serve a development of 12 houses, despite what one Councillor may have stated at the Planning Committee meeting.

Then there is the further question posed by the original poster.
In the event that such a road was granted planning permission and then constructed, would that be a substantial obstruction of a right of way that was over a 12 feet wide road.
As pointed out by this poster that would be a carriageway of 11 feet 5.795 inches with a pavement alongside that carriageway that will be 3 feet 3.37 inches.

That would make the useable part of the "road" a total width of 14 feet 9.165 inches.

I use the word "road" deliberately, because when a road is constructed that will be adopted by the local highway authority, the adoption includes the carriageway and any pavements or verges alongside the carriageway. An adopted highway will more often than not be the same type of construction as was suggested by the Councillor when he commented that a pavement should be included if there was only a 4.5 metre accessway to this new development.

There will not be a substantial obstruction to a right of way granted in 1932 under those circumstances, because there will be a clear carriageway of sufficient width to allow the property owners with a right of way to drive or walk over this road, that has increased in width from 12 feet to over 14 feet.

There are not many vehicle owners in the UK that will find it difficult to drive any vehicle over a carriageway with a width of 3.5 metres. That width will certainly accommodate a 6 wheeler lorry, never mind a private car.

All the comments about seeking an injunction and what may happen in the future based on a comment made by a local Councillor, who doesn't appear to know what he is talking about, have now managed to take up 3 pages on Garden Law's web-site.

After reading the following quote from the first posting, the only logical response should have been evident.
Since 3.5m equates to approx. 11.5ft this new plan (if and when it is submitted) will violate our right of way.
No it won't.
The idea that a car driven along a carriageway that has a width of 3.5 metres, rather than over a carriageway that has a width of 3.6576 metres will be a substantial obstruction to a granted right of way, which will be an actionable claim in a civil court, is simply ridiculous, especially when such an event is extremely unlikely based on the description of the planning permission already granted that required an accessway with a width of 8 meters to be provided to serve the development of 12 houses.
pilman
 
Posts: 2834
Joined: Thu Mar 11, 2010 5:08 pm

Re: Avoiding the obstruction of a right of way

Postby MikeJG » Mon Jun 12, 2017 9:15 am

Pilman you appear to have understood most of what has been written before but I don't think you fully understand the issue;
Planning permission has been given for a .8m edge, 5.5m road and 2m pavement. This involves demolishing a house.
The developer has tried twice (and lost) to get the road width reduced in order to keep the house. His next attempt (and I was speaking to him last night when we had to call the police out to stop him felling bird nesting trees) will be to put a pavement in the 4.5m that is left after keeping the house, thus reducing our road width.
If I read your advice correctly, in any case, you would not consider the small reduction, 12ft down to 3.5m as substantial and I am prepared to accept this. It is such simple advice I seek.
MikeJG
 
Posts: 62
Joined: Wed Oct 13, 2010 5:05 pm

Re: Avoiding the obstruction of a right of way

Postby pilman » Mon Jun 12, 2017 1:21 pm

Where we seem to disagree is that I do not consider that there will be any reduction in the width of the right of way because it will only be the carriageway reduced slightly in width. The carriageway together with the proposed pavement would still offer a road with a greater width than 12 feet.

Many people would think that this road would provide a safer right of way because every vehicle could drive over the carriageway, whilst pedestrians would walk along the pavement and be kept separate from any moving traffic. I cannot think there is any vehicle that will need more than 3.5 metres to safely pass and repass over that carriageway.

Should this "road" ever come into existence, although I don't think it ever will, it will have a width of over 14 feet.

That is how I see it anyway, and all I am expressing is a personal opinion based on knowledge of the planning system.

I live in a postal address that end in the word "Road". That "road" comprises a carriageway with a raised pavement on one side and a grass verge and ditch on the other side of the carriageway.

I think it is a mistake to consider only the carriageway defines that "road", which happens to lead to the only pub in the village. Some people who go to the pub use a vehicle that drives on the carriageway. People who want to walk to the pub use the pavement. Everyone one of them uses the "road".
pilman
 
Posts: 2834
Joined: Thu Mar 11, 2010 5:08 pm

Re: Avoiding the obstruction of a right of way

Postby MacadamB53 » Mon Jun 12, 2017 1:34 pm

Hi pilman,

I cannot think there is any vehicle that will need more than 3.5 metres to safely pass and repass over that carriageway.

I think the minimum width between kerbs for fire engine access - as typically recommended by local fire services - is 3.7m.

Kind regards, Mac
MacadamB53
 
Posts: 5954
Joined: Mon Dec 10, 2012 12:13 am

Re: Avoiding the obstruction of a right of way

Postby MikeJG » Mon Jun 12, 2017 1:50 pm

Firstly Pilman, I have no problem with your advice and Mac gives me a much better approach should the developer put forward a raised pavement. Indeed Warwickshire Fire service have a 3,7m between pavements minimum. This beats my 12ft!
Also I value your judgement that a planning application such as I suggest is unlikely to be passed.
There are lots of reasons why it should not be passed, violation of a row is not one of them.
Thank you
MikeJG
 
Posts: 62
Joined: Wed Oct 13, 2010 5:05 pm

Re: Avoiding the obstruction of a right of way

Postby pilman » Mon Jun 12, 2017 2:08 pm

OK mac, let's go off topic again.

Scania fire engine: Length: 10.5 metres; Width: 2.3 metres; Load weight: 12 tonnes. Engine: Scania 6-cylinder diesel.

Dennis Sabre Fire engine: Dimensions: Height: 3.13 metres; Length: 10.2 metres; Width: 2.3 metres; Load weight: 13 tonnes. Engine: Cummins C series 6-cylinder turbo diesel 250 BHP.

I am well aware of what the Fire Service would like to have as a minimum width for access in an emergency, which is one reason why I don't think a planning application to use this particular width of accessway to serve a development of 12 houses will ever succeed.
The official data provided by the fire service does ask for a minimum width of 3.7 metres, although it also states that the minimum width of gates can be 3.1 metres.

My comment related primarily to the people who have a right of way over what was described in 1932 as a road with a width of 12 feet.

I doubt that any such person with the benefit of that right of way cannot drive a vehicle such as a fire engine over that road when there would be a carriageway with a width of 3.5 metres, which is 1.3 metres wider than the width of either of the fire engines referred to above.

Most private individuals drive cars, vans or lorries, which all can safely pass and repass over a width of 3.5 metres.
pilman
 
Posts: 2834
Joined: Thu Mar 11, 2010 5:08 pm

Re: Avoiding the obstruction of a right of way

Postby mr sheen » Mon Jun 12, 2017 8:46 pm

Despite requests, the exact wording of the deed granting the ROW has not been forthcoming.
If the grant is a right to pass and repass over a roadway described as being 12 feet wide that means that the extent of the rights are to pass and repass to and from wherever over a roadway that happens to be 12 feet wide. In this case as long as one can in fact pass and repass then the full extent of rights have been enjoyed. This is a likely scenario.

There is a possibility that the extent of rights exceed the above. Until we see the exact wording, we can't assume.

There are many properties that are inaccessible to modern day Fire Engines. This may be a factor in terms of planning (I don't know) but it is not a factor in relation to the right to pass and repass to and from wherever that was granted in 1932.

All in all it is highly unlikely that there is justification for an application for an injunction to prevent the substantial interference consisting of a few inches of a ROW over a road that is 11-12ft wide.
mr sheen
 
Posts: 2075
Joined: Fri Feb 27, 2009 3:33 pm

Re: Avoiding the obstruction of a right of way

Postby MacadamB53 » Mon Jun 12, 2017 9:48 pm

Hi mr sheen,

There are many properties that are inaccessible to modern day Fire Engines.

yes, but not many have been built in recent time if the fire engine can't get within 50 metres of the building because such a proposal would not be endorsed by the local fire service - which is one of the reasons the hypothetical application may well fail.

off topic, I guess, as pilman pointed out.

Kind regards, Mac
MacadamB53
 
Posts: 5954
Joined: Mon Dec 10, 2012 12:13 am

Re: Avoiding the obstruction of a right of way

Postby mr sheen » Mon Jun 12, 2017 10:06 pm

The hypothetical planning application for the hypothetical development on the hypothetical roadway with the hypothetical proposed obstruction may not be hypothetically endorsed by the fire service, were the hypothetical planning proposal actually materialise...hypothetically.
mr sheen
 
Posts: 2075
Joined: Fri Feb 27, 2009 3:33 pm

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 
PreviousNext

Return to Rights of Way

Who is online

Users browsing this forum: No registered users and 2 guests