Neighbour obstructs Private Right of Way

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span
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Re: Neighbour obstructs Private Right of Way

Post by span »

jonahinoz wrote:am currently rebuilding a 1959 S2 onto a galv chassis. Less than 50,000 miles, less than 200 miles since it's last MOT ... which was 42 years ago. Sorry ... I'm rambling.
Sounds like fun. You don't have a build thread going anywhere, by any chance?
stufe35
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Re: Neighbour obstructs Private Right of Way

Post by stufe35 »

As I explained earlier I know of no law or precedent that limits you to hardcore...but I am no expert. Mr sheen perhaps you could tell us where this comes from,...or does anyone else have knowledge in this area. I am out of my comfort zone on this one, but logically I just don't get it. Personally if I were the land owner, I would prefer the 2 strips of concrete, it will be neater require less maintenance .. Hence I will have less disturbance, and I won't get gravel migrating all over the place.

Anyway I'm interested in other peoples take on this one ?

Also who owns the excavated top soil ?
MacadamB53
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Re: Neighbour obstructs Private Right of Way

Post by MacadamB53 »

Hi Dorje,

The neighbour is requiring that the ROW not be surfaced for vehicles and that users acrobatically unlock & lock three gates every time it is used, notice having been served

in what way is he 'requiring' these things?

the gates aren't locked and he isn't threatening to take you to court if you try to re-surface the track.

surely you mean something like 'preferring'?

Kind regards, Mac
ukmicky
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Re: Neighbour obstructs Private Right of Way

Post by ukmicky »

Dorje wrote:I haven't discussed the width with the vendor as it seemed such discussion was pointless and I was unwilling to let the purchase go based on a refusal to widen. In any case, the ROW width is fine, unless a gate must be opened and closed by its users. In that case, it should be widened to allow for that and hardcore would make a fine surface, as with most other vehicular ROW.


A gate or a locked gate which would be deemed a substantial inference on one piece of land may not on another .

There have been at least 2 cases I've read over the years where a gate with a lock on land containing livestock was not deemed a substantial interference due to the nature of the land it was granted over.(No I cannot remember the case names. )


Why do you think you can ask for more than the granted width simply because of a gate he has an express right to have.



Is this currently agricultural land . Have you asked the local planning department if they are ok with you laying tarmac or hardcore over it. Laying hardcore or tarmac over an agricultural field to create a access road to other land not connected with the agricultural use of the land would cause a change of use of that land. One of the UKs biggest fines was for failure to comply with an enforcement notice to remove hard core placed on agricultural land.

What sort of road will this access come out onto, is it a classified road requiring planning permission.
Any information provided is not legal advice and you are advised to gain a professional opinion
Dorje
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Re: Neighbour obstructs Private Right of Way

Post by Dorje »

ukmicky I previously mentioned the ROW as measuring 100m. x 2m. It is in fact 70m. x 2m.

My neighbour has fenced off 60m. of this ROW on both sides placing a new gate at 60m. That gate replaces fencing around garden beds which lay across the ROW until I asked him to move them to allow for me to use the ROW as deeded. Those fences kept the sheep he grazed in the past from accessing his vegetables. My photos show these alterations.

So the remaining 10m. x 2m. area has been given over to sheep as a reaction to my writing to him with my intention to use the ROW as deeded. Also, the area which he formerly used for grazing sheep measuring 60m. x 2m. has been fenced, gated and locked since I wrote to him. It is now inaccessible to any sheep which he may run there in the future. Currently there are no livestock in the field.

My assertion is that he should fence off the 10m. x 2m. area in the same way that he fenced off the 60. x 2m. or be seen to be creating an obstruction to my excercising my rights. I cannot be expected to keep his sheep inside his fences while navigating a vehicle through his gates. In addition, the gate at 60m. cannot be operated by the driver of a vehicle while inside the 60m. x 2m. section as the fences surrounding it prevent egress and ingress from the vehicle. All of the gates must therefore be opened and closed prior to and following the entry of a vehicle onto the ROW. Even if the ROW was unfenced, this would be the case as to exit and enter a vehicle wider than 1m. on the ROW would require trespass on his land. That of course could be alleviated by the widening of the ROW, a scenario as unlikely as winning the lottery.

As to laying a road surface along the ROW, it is clear he intends to allow the ROW to be inaccessible to livestock, except for the 10m. x 2m. section. As that section was never used for livestock the suggestion that it should now be used for livestock is clearly put forward as an obstruction to my intended use of the ROW as deeded.

He has written to me stating that case law prescribes that I not develop the ROW surface to allow for vehicles while recognising that the surface is currently impassable for vehicles. In addition, he writes that should I damage the surface of the ROW I will be liable for repairs to it. He writes that case law obliges me to use the ROW 'as is'. I have written to him saying that I am consulting a solicitor. He has invited me to stop writing to him and to come over for tea. I have not responded. That is where we stand today.
arborlad
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Re: Neighbour obstructs Private Right of Way

Post by arborlad »

Dorje wrote:I acquired the freehold of a rural one acre property two months ago. It is my principal residence. I intend to live and work at the property, and build a small workshop in the next year. The land slopes at 30˚.

What is your intention for the workshop once built, is it just for hobby use or is there a likelihood of deliveries/collections via the 2m track?

There are two existing gates of around 12ft across the track, that is a strong indication that at some time something much wider than the negotiated 2m was available...........but, be wary of anything agricultural, gates, fences etc., will be placed wherever they need to be for stock control and can't be assumed to be boundary features etc.

If the track is steep and with crossfalls, two strips of concrete done well may be the only surface to make the track fit for purpose. I've removed some for aesthetic and ecological reasons only to replace them a couple of years later because nothing else (Type1 scalpings) was working.
arborlad

smile...it confuses people
MacadamB53
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Re: Neighbour obstructs Private Right of Way

Post by MacadamB53 »

Hi Dorje,

let's imagine the track has now been re-surfaced, the neighbour has fenced the remaining 10m stretch and removed the additional gate(s) so only the one from the 'agreement' stands.

can I take a vehicle like the ones you have in mind down to your field and back?

Kind regards, Mac
pilman
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Re: Neighbour obstructs Private Right of Way

Post by pilman »

Part 9 of the Town and Country Planning (General Permitted Development) (England) Order 2015 describes "Development relating to Roads"

Class E – repairs to unadopted streets and private ways
Permitted development
E. The carrying out on land within the boundaries of an unadopted street or private way of
works required for the maintenance or improvement of the street or way.

Interpretation of Class E
E.1 For the purposes of Class E, “unadopted street” means a street not being a highway
maintainable at the public expense within the meaning of the Highways Act 1980(b).

After reading those words it doesn't appear to prevent the laying of concrete strips over the length of the private way referred to in this posting.

The quote earlier from the case of Newcomen v Coulsen seems to describe quite accuarely the situation regarding the lawfulness of actually laying this type of surface.
" If you grant to me over a field a right of carriage-way to my house, I may enter upon your field and make over it a carriage-way sufficient to support the ordinary traffic of a carriage-way, otherwise the grant is of no use to me, because my carriage would sink up to the naves of the wheels in a week or two of wet weather. It cannot be contended that the word "repair" in such a case is limited to making good the defects in the original soil by subsidence or washing away, it must include the right of making the road such that it can be used for the purpose for which it is granted. Therefore I think the Defendants have a right to make an effective carriage-way" Although in 2016 we no longer use "carriages" the ordinary traffic will now be a motorised vehicle which ought preferably to be a 4 x 4. Those modern vehicles are quite considerably heavier than a 19th century carriage would have been and have more horse-power to drive them over the natural rough surface of a muddy field, but most peole in 2016 would accept that a hard surface of concrete or tarmac is now considered to be a suitabkle surface for these heavy modern vehicles, albeit one that in this case will need to have a maximum width of 2 metres.

Out of curiousity I measured the width of my Subaru Outback AWD to confirm that even with the wing mirrors unfolded it would just about pass along that 2 metre wide access, as long as I kept it in a straight line. Driving over a really muddy section of a field after the flooding that recently occured in some parts of the country, it would be virtually impossible to keep within the boundary marked by fencing once the wheels started slipping in the mud.

That is why there is merit in having a concrete surface that will enable access to most types of vehicles, rather than just a 4 x 4 AWD vehicle.

A full size digger will never be able to use that access because that requires a width of 2.5 metres, although the mini-diggers now available could travel to the OP's land if a workshop needed to have excavated footings provided when it comes to be erected. Dump trucks can carry building materials along a 2 metre wide access, as can many modern pick-up trucks, many of which are 4 x 4's.

I still consider that having to stop after 60 metres to open a gate erected across the access will not be possible, so that will be a substantial obstruction to the intended use of the granted right of way.
Expressing a personal opinion, it does seem as though the only way to resolve the situation is to have a fenced access that has a single gate at the entrance to the field but not at the point where the OP's property begins. Then the gate can be opened while the vehicle has not yet entered the fenced section, because the driver can step out of the vehicle with an unrestricted width of land alongside the vehicle. If the fencing is also enclosing animals in the field the gate can then be left open for the duration of the time the OP is on his own property with no detriment to the agricultural activity of keeping animals in the field owned by the neighbour.

The fact is that this access is there to serve the needs of the dominant land, which is why the legal term servient land came into being. One serves, one dominates.

In this case the neighbour has to have that fact pointed out to him.
duvet
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Re: Neighbour obstructs Private Right of Way

Post by duvet »

Your caselaw for improving the ROW is flawed by the way if your ROW is for a field or a single dwelling but you intend to build a workshop.

At best you have persuasive argument not binding as the facts differ significantly. Whilst the caselaw for excessive user isn't binding either... itll just add to your expenses

Jelbert v Davis is an example of Newcomen v Coulson being thrown out..
its a point of much debate and as such I wouldnt rely on it winning anything
pilman
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Re: Neighbour obstructs Private Right of Way

Post by pilman »

Thanks for the more recent case law reference Duvet, but the first sentence in this post was relevant.
I acquired the freehold of a rural one acre property two months ago. It is my principal residence. I intend to live and work at the property, and build a small workshop in the next year. The land slopes at 30˚.
This implies that the plot is in residential use although the new owner intends to erect a workshop in the future. Unless that workshop is to become a commecial building, that will only ever be able to be accessed by vehicles less than 2 metres wide, I consider that the case concerning a caravan site intended to accommodate 200 caravans is far different to the 19th century case where the right of way is referred to as leading to a house.

However it is relevant that no court case is ever cut and dried when quoting previous case law, so it seems sensible to point this out to the Poster.
MacadamB53
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Re: Neighbour obstructs Private Right of Way

Post by MacadamB53 »

Hi pilman,

I have asked the OP whether the 2/3 acre 'field' where the workshop is to be built is attached to the dwellinghouse - because I thought this might be an important fact to consider.

maybe the OP could provide an answer...

Kind regards, Mac
duvet
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Re: Neighbour obstructs Private Right of Way

Post by duvet »

MacadamB53 wrote:Hi pilman,

I have asked the OP whether the 2/3 acre 'field' where the workshop is to be built is attached to the dwellinghouse - because I thought this might be an important fact to consider.

maybe the OP could provide an answer...

Kind regards, Mac

Thats what I thought. If the workshop is his principle residence then its already accessible without using this alternative route.

Pilman.. have just won a case simply by frustrating the other parties attempts to instigate legal proceedings until the other party ran out of funds.

far better to have the arguments here free and not in £100+ per time letters
andrew54
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Re: Neighbour obstructs Private Right of Way

Post by andrew54 »

MacadamB53 wrote:
I have asked the OP whether the 2/3 acre 'field' where the workshop is to be built is attached to the dwellinghouse
From what the OP said earlier, I was under the impression his house and this workshop were within one piece of land, but that the workshop area is up a very steep slope. The only practical way to reach the upper land is by using this right of way over his neighbour's land.
MacadamB53
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Re: Neighbour obstructs Private Right of Way

Post by MacadamB53 »

andrew54 wrote:
MacadamB53 wrote:
I have asked the OP whether the 2/3 acre 'field' where the workshop is to be built is attached to the dwellinghouse
From what the OP said earlier, I was under the impression his house and this workshop were within one piece of land, but that the workshop area is up a very steep slope. The only practical way to reach the upper land is by using this right of way over his neighbour's land.
the use of the word 'field' with quotation marks by the OP gives me the impression they don't consider this as part of their garden and lies beyond the curtilage of the dwellinghouse...

Kind regards, Mac
Dorje
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Re: Neighbour obstructs Private Right of Way

Post by Dorje »

MacadamB53 In attempting to attach a plan, I am told, 'the board attachment quota has been reached'. Any tips, anyone? It does make this situation much clearer.

You ask about the relationship between my principle residence and the proposed workshop. The two sites are on the same property, separated by 100m directly on the fall line of a 30˚ slope. I consider it impractical to build a road between the two and intend to use the ROW to access the proposed workshop. Regarding the Deed in that respect, I am permitted to use the ROW 'for all purposes' so any discussion of 'purpose' seems to be moot.

If kept closed, the boundary gate would be an obstruction in my view: a vehicle operator would be obliged to exit their vehicle 90m. away from the gate at the start of the ROW. They would then need to walk to the gate to open it, return and then traverse the ROW in their vehicle. They would have to repeat this in reverse to exit the ROW.

Whether fenced or unfenced, a vehicle operator cannot currently exit most four wheeled vehicles on this particular 2m. ROW without trespassing. As most of the ROW is now fenced, and gated in three places, it is physically impossible for a vehicle operator to:
- exit their vehicle at every gate on approaching OP's property, and
- exit their vehicle at two gates on leaving OP's property.

Is it clear that were the neighbour to complete the bounding of the ROW by adding 10m. of fences and also install a gate in the fence bounding the field below his garden and yard, there would be no need for these gates on the ROW? In addition, his livestock would then not be at risk of escape while users operated vehicles on the ROW. Lastly, it is wise to avoid a rutting ram... a scenario I do not wish to see escalate into a physical confrontation between users of the ROW and my neighbour's sheep.

ps the ROW traverses the neighbour's property in a more or less straight line parallelling the fences at the foot of his garden and the top of his field. Like my own, his property is arranged across the fall line of a slope.
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