Victorian terrace back passageway demolished in conservation area

maybenot
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Victorian terrace back passageway demolished in conservation area

Post by maybenot » Thu Jul 25, 2019 8:37 pm

Victorian terrace back passageway demolished in conservation area – ROW issues
• Two high walls – a passageway - were/was demolished in a conservation area without consent (some time ago – not sure exactly when – but prior to 2006)
• Could these be described as boundary party walls?
• They were probably in the order of 2m high (the mirror image of the walls the other side of the front to back passage exist – they are high and you cannot see over them)
• The passageway walls and the land between were not ‘owned’ by anyone in particular but the deeds state that the various properties have shared rights and responsibilities to use and maintain the passageway
• The demolition took place to unite two pieces of land either side of the passageway
• The land of the passageway is now incorporated into that ‘garden’
• The residents in the house at the end of the row now have to pass through a garden rather than be able to pass freely along a passageway – this has caused considerable stress, partly because the people who demolished the wall have tried to maintain there is no right way: they would rather people did not feel they have a right to go through their the garden
• The demolition has been reported to the enforcement team as a breach of planning control - I sense they are not interested even though it is a conservation area
Has anyone any experience / knowledge of similar situations? What arguments should/could be presented? Ideal solution for the end property would be the reinstatement of the walls/passageway – this is a conservation area so it is believed there are no time limits.
Thank you for any thoughts.

IdefixUK
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Re: Victorian terrace back passageway demolished in conservation area

Post by IdefixUK » Thu Jul 25, 2019 10:01 pm

Hello maybenot,

It would seem to me that any right of way (ROW) will continue to exist inspite of the removal of the walls which once were in existence .

It could be that the land with now the enlarged garden also owns the land "underfoot" of the ROW, but that makes no difference to the existence of the ROW, and it should be kept clear so that there are no obstructions. If the property is registered you can download the title and the plan for the property for a few pounds from the (genuine ie .gov) Land Registry website.the plan will show if they own the land of the ROW. If the land of the ROW is not under the same ownership then you have the problem of seeking out the owner, after all it could be that the owner of the ROW land owns the walls as well.(but with old properties ownership of boundary features can be hard to prove unless it is clearly written in the title deeds)

The owners of the properties which benefit from from the ROW always have an ancillary right to repair it, this (to me) means the surface of the land rather than any walls abutting it, so those owners could repair any pot holes etc. if they wished.
The walls are really nothing to do with the ROW and, although it might be nice to have them reinstated, I don't believe that any of the legitimate users of the ROW can force the wall owners to reinstate them, that would be down to the local council to persue if they wanted to.

The title deeds to the enlarged garden house may well mention the burden of the ROW, and the end house title may well mention the benefit that their property has over the path. It might not be mentioned in both sets but that doesn't mean it is invalid.

I do strongly suggest that someone takes plenty of photos (dated) of the situation "on the ground" now, such that they can be used as evidence should the ROW be blocked or rerouted at any stage in the future.

Regards

maybenot
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Re: Victorian terrace back passageway demolished in conservation area

Post by maybenot » Thu Jul 25, 2019 10:44 pm

Hi

Many thanks for taking the trouble to respond.

We are clear that the right of way continues to exists despite there being no passageway as such anymore.

Our reading of the deeds (all sets - obtained from the Land Registry website) is that the passageway walls and the land of the passageway did not belong to any of the houses - but that all the houses who had access to the passageway shared rights and responsibilities. ie the Victorian builder put in these alleyways for service access and just left everyone to get on with it.

So the people who demolished the walls had no right to do so - as they were party boundary walls ie 'shared' - and neither did they own the land 'underfoot' now incorporated into their garden.

Our problem is this: where there was once an alley/passage which provided for free, easy, 'private' access - there is now no such privacy as the ROW is through someone's garden. This is quite a loss of amenity: it is one thing to walk down a passageway at whatever time you wish and how often you wish - it is quite another to wonder if it is convenient to go across someone'e garden. Furthermore the people who demolished the walls have tried hard to disguise the truth of the situation and to make people feel uncomfortable about using the right of way. It would be much more pleasant to have the walls again!

We believe we are correct in thinking that:
These walls should not have been demolished because they were in a conservation area - and were of the order of 2m in height
Demolition consent should have been obtained (it was not)
There is no time limit on enforcement in conservation areas
If the Enforcement Team were so minded they could force the reinstatement of the walls (regardless of who owned them or who demolished them)
However, it would be useful to know if there is any precedent for this situation (case law etc) - and any arguments to strengthen our case with the enforcement team as to why they should seek reinstatement

(Had demolition consent been sought - we would have contested it on the grounds that (i) the applicants did not own the walls; (ii) it harmed the neighbour's amenity; (iii) this was a conservation area and the Victorian back alleyways are part of the design and layout of these terraces).

I suppose I am hoping for arguments to build a case as to why the planners should force reinstatement!

Thanks again ...

IdefixUK
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Re: Victorian terrace back passageway demolished in conservation area

Post by IdefixUK » Fri Jul 26, 2019 7:10 am

You state that the passageway walls do not belong to any of the houses. How do you know this, is there some wording in the title deeds which indicates this?

Even if the walls belonged to the original builder you still have the propblem of tracking down the current owner if you want that person to try to take some action. Doubtful.

Perhaps getting the users of the ROW to contact the local MP and Councellors may help if they can are willing to put pressure on the Conservation Area Enforcement Team. Apart from this I cannot think of any other action you might take to get the wall rebuilt.

Has anyone yet talked to the owners of the "extended garden" and shown them that the ROW exists and that it cannot be extinguished unilaterally?

Regards

arborlad
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Re: Victorian terrace back passageway demolished in conservation area

Post by arborlad » Fri Jul 26, 2019 7:40 am

maybenot wrote:
Thu Jul 25, 2019 8:37 pm
• The land of the passageway is now incorporated into that ‘garden’



Does the 'garden' owner have a documented easement over the land that has been incorporated?

I think a sketch or anonymised title plan will help the understanding.
arborlad

smile...it confuses people

mr sheen
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Re: Victorian terrace back passageway demolished in conservation area

Post by mr sheen » Fri Jul 26, 2019 7:52 am

If it is your intention to seek to 'force' the Enforcement Team to take action, you are probably wasting your time. the enforcement team assesses the situation and can take into consideration multiple factors to determine if they will pursue enforcement action. They consider factors such as - benefits to public, costs, LA resources, extent of planning violation, setting of precedents etc etc etc before they choose whether it is in the public interest to pursue enforcement action.

It is highly unlikely that it would be deemed an efficient and effective use of public resources to embark upon costly legal action against multiple respondents in relation to a wall that was demolished some time ago. No amount of pressure from a single resident will 'force' them to embark upon such a use of public resources if they consider the cost/benefit ratio too high.

maybenot
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Re: Victorian terrace back passageway demolished in conservation area

Post by maybenot » Fri Jul 26, 2019 9:01 am

Thank you all for your replies.
I will try to deal with your points in turn. I attach the anonymised deeds to the house affected by the loss of walls ...
Yes it does seem to say 3(2) that there is an 'easement' 'over the adjoining property' ...
I'll look at the other deeds ... Sorry I can't get the file to upload so it is cut/pasted below

A: Property Register
This register describes the land and estate comprised in the title.
1 25.06.1979) The Freehold land shown edged with red on the plan of the above Title filed at the Registry and being XXXXXX
2 The land has the benefit of but subject to the following rights contained in a Conveyance of the land in this title dated 23 April 1956 made between (1) XXXXXX (Vendor) and (2) XXXXXXX (Purchaser):-

"TOGETHER with the right (as now existing) for the Purchaser and her successors in title and all persons authorised by her or them to use the passage of the width of Four feet and Three feet coloured brown on the said plan and any culverts drains and pipes thereunder for all the ordinary purposes of passages culverts drains and pipes in common with the owners and occupiers of Numbers XXX, XXX and XXX aforesaid and Numbers XXX and XXX upon payment by the Purchaser of a fair proportionate share of the expense of keeping the said passages culverts drains and pipes in repair."

NOTE: The land coloured brown referred to is the passageway leading from the back of the property into XXXXX (the road).
3 The Conveyance dated 23 April 1956 referred to above contains the following provision:-

"IT IS HEREBY AGREED AND DECLARED as follows:-
(1) All drains sewers gutters down spouts service pipes wires and cables enjoyed by the property hereby conveyed in common with the adjoining property of the Vendor namely XXX shall be or become party drains sewers gutters downspouts service pipes wires and cables and be repairable accordingly.

(2) All rights in the nature of easements which were the respective properties in separate owneships would be capable of being legal easements which are enjoyed by the property hereby conveyed over the adjoining property of the Vendor and all such rights enjoyed by such adjoining property hereby conveyed shall henceforth be and become legal easements.

(3) The walls and fences dividing the property hereby conveyed from the adjoining property of the Vendor shall be and become party walls and fences and be repairable accordingly."

maybenot
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Re: Victorian terrace back passageway demolished in conservation area

Post by maybenot » Fri Jul 26, 2019 9:17 am

This is the house deeds of the house that demolished the walls (there is an extra set of deeds for the piece of land)
The wording is very similar to the document for our house - but does not mention our house at all
It does not mention anything about an easement either - but they are using the passage in just the same way as we are???

A: Property Register
This register describes the land and estate comprised in the title.
1 06.12.1977) The Freehold land shown edged with red on the plan of the above Title filed at the Registry and being XXXX
2 The land has the benefit of the following rights granted by a Conveyance of the land in this title and other land dated 6 October 1951 made between (1) xxx and (2) xxx:-

"TOGETHER with the right (as now existing) for the Purchaser and his successors in title and all persons authorised by him or them to use the passage four feet wide coloured brown on the said plan and any culverts drains and pipes thereunder and under the passage three feet wide also shown on the said plan for all the ordinary purposes of passages culverts drains and pipes in common with the owners and occupiers of Numbers xxx and xxx aforesaid and Numbers xxx and xxx upon payment by the Purchaser of a fair proportionate share of the expense of keeping the said passage culverts drains and pipes in repair."

NOTE:-The passage coloured brown referred to is the passage adjoining the southern boundary.

maybenot
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Re: Victorian terrace back passageway demolished in conservation area

Post by maybenot » Fri Jul 26, 2019 9:31 am

These relate to the additional strip of land.
Here our house is mentioned - but it is clearly mentions the the passageway which now runs between the house and its extra strip of land

A: Property Register
This register describes the land and estate comprised in the title.
1 (01.09.1980) The Freehold land shown edged with red on the plan of the above Title filed at the Registry and being Land lying to the xxxxxxxx.
2 The land has the benefit of the following rights granted by but is subject to the following rights reserved by a Conveyance of the land in this title dated 15 September 1961 made between (1) xxx and (2) xxx (Purchaser):-

"TOGETHER with free and perpetual access of light and air to the back window in Number xxxx aforesaid and the right of overhanging eaves and spouting therefrom as respectively heretofore enjoyed AND TOGETHER WITH the right as at present existing for the Purchaser and his successors in title and all persons authorised by him at all times to use the passages of the width of Three feet and foiur feet respectively leading out of xxxx and any culverts drains and pipes thereunder for all the ordinary purposes of passages culverts drains and pipes in common with the owners and occupiers for the time being of the houses Numbers xxx and xxx aforesaid on payment by the Purchaser or his successors in title of a fair proportionate share of the expense of keeping the said passages culverts drains and pipes in repair TOGETHER ALSO with the subject to all other rights and easements which are now used and enjoyed by and against the property hereby conveyed and the adjoining or neighbouring property."

IdefixUK
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Re: Victorian terrace back passageway demolished in conservation area

Post by IdefixUK » Fri Jul 26, 2019 9:35 am

I think that probably the only persons who can take action regarding the demolition of the walls are:
A) The council conservation team.
B) The current owner of the passage way.
It doesn't sound as though 'A' are interested, and even if you can track down 'B' do you really think that they will be interested in starting some action?

Regards

maybenot
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Re: Victorian terrace back passageway demolished in conservation area

Post by maybenot » Fri Jul 26, 2019 9:49 am

You state that the passageway walls do not belong to any of the houses. How do you know this, is there some wording in the title deeds which indicates this?
I cannot see anything that suggests any of us own any parts of the passageway (and I’m sort of assuming passageway means a right of way with ‘walls’?? ). The deeds say we use everything in common and we keep it all maintained in common.
Does the 'garden' owner have a documented easement over the land that has been incorporated?
The first set of deeds (ours) mention an easement 3(2) – as does the last. I’ll try to provide a sketch in a minute
Even if the walls belonged to the original builder you still have the propblem of tracking down the current owner if you want that person to try to take some action. Doubtful.Perhaps getting the users of the ROW to contact the local MP and Councellors may help if they can are willing to put pressure on the Conservation Area Enforcement Team. Apart from this I cannot think of any other action you might take to get the wall rebuilt.
My thought was that the enforcement team could take action (if it was persuaded/minded to) against those who demolished a structure in a conservation area without consent. I acknowledge all the points Mr Sheen makes .. which is why I wanted some advice on how to handle this!!
Has anyone yet talked to the owners of the "extended garden" and shown them that the ROW exists and that it cannot be extinguished unilaterally?
Yes. They have finally conceded that there is a legal right of way – and it is not just a question of them being ‘neighbourly’ and ‘good-hearted’.

I think I’ve answered all the points. Thank you all once again for taking the time and trouble to respond – I do appreciate it.

maybenot
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Re: Victorian terrace back passageway demolished in conservation area

Post by maybenot » Fri Jul 26, 2019 11:08 am

I have prepared a sketch but I cannot see how to upload it .. if it would be of use to anyone please let me know and let me know how to upload it! Thank you.
I think that probably the only persons who can take action regarding the demolition of the walls are:
A) The council conservation team.
B) The current owner of the passage way.
It doesn't sound as though 'A' are interested, and even if you can track down 'B' do you really think that they will be interested in starting some action?
We thought the same regarding A as being our only possible way forward ... you are right they are very probably not interested - but they either have a conservation policy and an enforcement policy or they don't. I think our case aligns with both.
(I realise their action is discretionary and they do have to take MrSheen's points into consideration - but having the right arguments to put before them might be a help).
Regarding the current owner of the passageway - is there actually an identifiable owner? Does your comment imply that you agree with what we thought: that the houses were built and the access passages were built and it was left at that with the proviso that everyone had rights and responsibilities.
If so, in effect there is no owner looking after things, or being the remotely bit interested - but we, in common, take on the responsibilities. (I must admit I find these deeds are not the easiest thing to comprehend!)
If held in common - no one resident should have taken it upon themselves to demolish the walls ...?
Do you agree from those deeds that none of the houses actually owned the land and the walls of the passageways?

Of course our concern is not actually about ROWs as such (we have a right of way), or people demolishing without consent, or who actually does or does not own the walls (although that information helps to some extent) - what we want is the walls back! It has proved stressful dealing with these particular neighbours and life would be so much simpler if one could just walk along a passageway rather than through and across their garden when it has been made very clear that they do not like this.

Once again thank you for your thoughts and comments.

IdefixUK
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Re: Victorian terrace back passageway demolished in conservation area

Post by IdefixUK » Fri Jul 26, 2019 11:16 am

maybenot wrote:
Fri Jul 26, 2019 9:49 am
(and I’m sort of assuming passageway means a right of way with ‘walls’?? ).
I think your assumption is not correct. The ROW is a right of passage across the land, I don't believe that it also gives you a right to have walls either side of the involved land. You do not need the walls to be in position for you to effectively use the right across the land.

Off Topic but I was just thinking that if a ROW was written so that it crossed a very narrow bridge (like a plank of wood) over a stream, for example, and the hand rails were removed by the bridge owner, I would wonder if this action might be considered a substantial interference with the right if it was then too dangerous to cross by a "normal" person. Would the presence of a handrail be considered an ancillary right?

Regards

maybenot
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Re: Victorian terrace back passageway demolished in conservation area

Post by maybenot » Fri Jul 26, 2019 11:30 am

'to use the passage'
passage = an enclosed path that connects places

I agree this is a moot point. I don't know enough about deeds to know how other situations are described ...

maybenot
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Re: Victorian terrace back passageway demolished in conservation area

Post by maybenot » Fri Jul 26, 2019 12:10 pm

If the passage walls had fallen into disrepair, who would have been asked to contribute towards the cost of repair?

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