Private Right Of Way:Safety/Law

Re: Private Right Of Way:Safety/Law

Postby stufe35 » Wed Nov 01, 2017 8:57 am

I think the case for a newly introduced 9" step on a previously gently sloping path being a substantial interference is quite compelling. If you were a paraplegic in an electric wheel chair you have gone from being able to access the house you bought to not being able to access the house you bought I think you would consider it to be a major issue.

I understand the test for substantial interference is not 'can the path still be used' or' is it still good enough for their needs' it is 'can it still be used as conveniently as before ?' id suggest anyone visiting the house in a wheel chair or with a pram or a wheely bin or a wheel barrow cannot exercise the right as conveniently as before.

You say there is a balance between the servient owners needs and the dominant owners needs, but the right of way was reserved for the dominant owners use and their needs (within the bounds of the original grant and what existed at the time it was granted) generally carry the greatest weight. The names servient and dominant are no accident.

I think with a few well worded letters pointing out the facts and previous case law from a solicitor, any reasonable servient owner would see the error of his ways and make the situation good. I don't think it would see a court room as if the servient owner were properly advised by a solicitor they would be told the risk for them of losing is too high. If it did get to court and the dominant owner lost it would be an outrage based on the facts currently presented.

Mr Sheen words are quite right in that all court action carries risk..but I would have thought house insurance should take this on.

I agree with Mac , a ramp at the other end would be an option , but this will need the agreement of the owner of that land.
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Re: Private Right Of Way:Safety/Law

Postby mr sheen » Wed Nov 01, 2017 9:28 am

It's good to have different opinions but only the opinion of the court is relevant and that is where the risk comes in.

I absolutely disagree about sending letters without any intention of taking the matter all the way to court. These bullets often backfire.

Letters sent from neighbours without any real 'teeth' usually meet the ' what ya gonna do about it' barrier. Best to discuss personally face to face to see if an agreement can be reached with the argument about disabled users or assess the strength of your case and only initiate the 'legalese' course if you have a very strong case.....and this is not...if an insurance company will take it on then ok go for it but convincing an insurance company will be the first hurdle.
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Re: Private Right Of Way:Safety/Law

Postby MacadamB53 » Wed Nov 01, 2017 11:01 am

Hi stufe,

the OP confirms there has always been a step there, it’s just the step is now allegedly taller than it used to be (when nobody caree, maybe because nobody cared for the route in general).

Hi Swoop,

in what condition is the rest of the route? all of it?

and in what condition is the section immediately after the “step”?

how frequently were you actually using the route before the “step” was built?

kind regards, Mac
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Re: Private Right Of Way:Safety/Law

Postby span » Wed Nov 01, 2017 3:30 pm

mr sheen wrote:Only a Judge can determine if the step amounts to a 'substantial interference' of a right of way and taking this matter to court would be ludicrously expensive and may not get the step removed.

This is a private right of way so of no concern of the council.

For a private right of way there is a balance between the owner of the land being able to use their land and beneficiaries of the right to pass and repass being able to do so. As long as you can pass and repass then a court will expect you to respect the rights of the owner; equally the court will expect the owner not to substantially interfere with the rights of beneficiaries. The problem here is that a court could go either way, it's not cut and dried....hence it would be a very expensive gamble to seek to pursue this matter.


I bet if you turned up in court in a wheelchair, or pushing in a wheelchair a frequent visitor to your property, to explain to Hizzonner how a 9 inch step is a pretty substantial interference you'd gain more traction with him that way.
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Re: Private Right Of Way:Safety/Law

Postby Swoop » Wed Nov 01, 2017 9:07 pm

MacadamB53 wrote:Hi stufe,

the OP confirms there has always been a step there, it’s just the step is now allegedly taller than it used to be (when nobody caree, maybe because nobody cared for the route in general).

Hi Swoop,

in what condition is the rest of the route? all of it?

and in what condition is the section immediately after the “step”?

how frequently were you actually using the route before the “step” was built?

kind regards, Mac


Thanks for the input guys, most interesting indeed :D
Yes a taller step: 9 times taller :shock:
As for Mac's questions:
The rest of the route is in fairly good condition throughout. End house has some steps to gain access (this was one of the reasons given by homeowner as to why another step is fine even though his step effects everyone not just end house).
The section after the step is good solid concrete. Ideal to place a ramp.
The route is used daily by numerous people (although there has been a good few near misses on the new step recently) Any of these could have been a fatality IMHO. At night, no one can see the trip hazard or cliff edge if coming from other direction.

As for pen and paper discussions, or verbal discussions, this route has been exhausted sadly. Concerns were raised when step was constructed, but everyone was told in street it was legal and staying. I think the last comment from them was... "we have had legal advice, and it's our land so we can do what we like, it is nothing to do with any of you". :shock:

I agree that placing a slope at end of step is a good and probable solution (and may be what will have to be done), but it seems unfair that the street (including the disabled person) has to pay together for this to be placed on someone elses land purely to correct a mistake on one ill designed property :cry: The problem is that it is too high for children, old people, and anyone unsteady on feet to negotiate safely or easily.

If I renovated my house and place a 9 inch step inside, bulding control would deem it illegal. Strange how it is fine to expect members of the public to be put at more risk than inside a private home :cry:
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Re: Private Right Of Way:Safety/Law

Postby ukmicky » Thu Nov 02, 2017 12:35 am

if the layout was changed and a step introduced and the step height was excessive and caused access issues it could be deemed a substantial obstruction and the landowner could be taken to court.
Advice given is not legally qualified and you are advised to gain a professional opinion
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