Obtaining ROW injunction

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Joined: Mon Aug 21, 2017 8:16 am

Obtaining ROW injunction

Post by beardsince1978 » Wed Sep 20, 2017 5:24 pm


Long story short is nextdoor is NfH. We're converting a bungalow to a house. NfH was shown plans before they were submitted, made no objections then or to planning, but now is making life as difficult as possible. We're had a complaint to local environmental health, went nowhere. Complaint to planning that gas installation was us putting in a driveway (yes, yellow pipe and visi-vests with gas on them weren't enough of clue). NfH beef is that we cut the overhanging branches off their trees, which incidentally are over 8.5m tall, planted 6in from boundary and were overhanging up to 2.5m over a 2m wide passageway (it is used to be bungalow and yes these were touching the roof). Latest issue is our ROW which runs along the front of their property. I can see this ending up in court as they seem unwilling to listen to reason, hence I'm looking for advice on the best way to proceed with that, how much detail to include, what expert reports I would need etc. etc..

Some background. My plot was originally the east 1/3 of a large garden. Plots run N-S with main road to N. My ROW run E/W across the top, N side of next door to join up with their exit in the NW corner. The plot was originally bought by my mother so I knew some of history and have track down the rest which is very murky indeed. The original outline planning permission, in 1982, by say Mr & Mrs A specified the access to the road as being "Vehicular access gate already in existence, approach to this is to be improved". This was in the NE of my plot and I assume that there was at that time a track across the verge. The Parish council objected to this access on grounds on highway safety, look, and the fact that they owned the verge and weren't about to sell it. Planning dismissed safety as the county surveyor saw no issue with it and also look. County solicitor reported that the wide verge was not common land and that he couldn't comment on the Parish Council's title to the land. Outline planning permission was granted. Mr & Mrs A later sold their house and this plot to Mr & Mrs B who in 1985 renewed the outline planning permission. My mother bought the plot in 1985/86. As myself and wife separately recall, my mother, who was living with us at time, came home very upset in that she'd been told the Parish Council wanted £10,000 for the right of way (about £50k today). She approached Mr & Mrs B about this as she could afford such a large run (not to mention feeling ripped off I guess). The solution arrived at was for Mr & Mrs B to move back their front garden wall to give up over 100m2 for a ROW to join up with their exit. Part of the old garden wall was taken down to allow lorries to make the turn which is a sharp 90 bend. My mother had this wall rebuilt at the end because she thought she had to do this to get planning approval for her bungalow.

Fast forward to now and I've inherited the bungalow and am turning it into a house. I looked to bring gas into the property which was available at the time. The gas pipe has to cross the verge so I look into the ownership and I'm told the PC own the land, but on checking the records I find that this land is NOT listed in PC accounts as an asset, nor do PC accounts show any wayleaves from the 2 telephone poles on the land. I check with openreach who tell me they pay no wayleaves and know of no owner (in case PC accounts are wrong). I therefore ask PC to show proof that the own the land and PC admit that they have no title and that it must be manorial waste. I also check it is not common land nor owned by highways.

So, not only did PC in 1986 try to rip off a widow but they also didn't even own the land anyway. And of course there could have been a ROW across it since there was gate which implies ROW. Plus legally I think they would have had to sell the land for market rate, for the same reason they couldn't sell it to a mate for 5p then they couldn't sell it for £50k either. It is also suggestive that there is nothing in the minutes from that time of any discussion of this plot and surely £50k warrants minuting!

What I want to do now is take down the end section of this wall, as was done when the bungalow was built and leave it down. This enables a small bit of the manorial waste to be turned into driveway so that there is a permanent access for large vehicles to make deliveries, or fire engine access, ambulances, friends with camper vans, etc.. My argument for this is that the ROW was for large vehicles because the plot was sold as building land. Transfer and ROW pre-date planning approval. Nothing in ROW wording specifies an exit and ROW north side is bounded by "public" land aka "highway" (road and verge). It seems to me than any solicitor that didn't ensure that a building plot had access for vehicles for building material delivery would be guilty of malpractice so the assumption must be that the words mean what they say, ROW all along the N side of next door with no specific exit or exit width. I've worked out that bungalow would have needed 2 or 3 concrete lorries, ~30 ton of shingle for the driveway and ROW.

None of this cuts any ice with NfH who bought the house off Mr & Mrs B in 1994.

It seems to me that I have 3 legal arguments, a) the ROW was for large vehicles because the transfer pre-dates the building and the wall was taken down to allow access. b) the ROW is by necessity because access in needed for building maintenance (or rebuild in the even of house fire), driveway is 22 ton of shingle which needs topping up every so often, access for emergency vehicles, etc., c) Emmett v Sisson [2014] would also seem to be relevant since but for the wall the ROW would allow access to public land.

I've bent over backwards with NfH. Another issue is that NfH have planted a tree at the corner of entrance. This is on the ROW since it is outside their "new" garden wall/fence and ROW is shown to include where it is with no mention in text of any planting bed. NfH do not cut tree and have said will call police if I prune it (criminal damage). Tree is so low as to block tall vehicles who care about paintwork etc., builders' mechants don't care so much. I have asked for a 4m clearance (fire engine and tall euro vehicle height) which is less than highways limit.

I wrote to NfH and said I proposed to self-remedy their obstruction by removing the wall and cutting the tree as necessary, which hopefully would not be as necessary with the wall removed. I suggested that they contact a solicitor to get his advice as my understanding was that I was allowed to do this. NfH wrote back saying they they didn't think the wall was theirs and not to cut their tree. Wall needs repairing at the other end so NfH disowning wall is cheaper for them. OK by me as getting them to pay for repair didn't seem likely anyway and at least I can now take down wall which I start to do. NfH is away but neighbour aka NfH2 calls police who talk me and go away saying will mark call as malicious.

NfH then contact a solicitor who basically parroted what NfH says, not obstructing, don't cut tree, put wall back by end of building work or Chrismass. I wrote back with a stack of documents showing vehicle swept path for a fire engine and how this needs the wall removing and pointed out that it was NOT rocket science, a 3m branch will obstruct a 4m high vehicle, and 3m is generous I doubt they are that high and ambulances are 3m tall. I also give him the history, the fact it was a building plot when ROW was agreed, etc.. I also point out that NfH have stated that wall is not theirs. If their position is changed can they confirm that in writing, and I point out that this would make them liable for the wall repairs (probably I reckon but I don't put probably). 40 days later I get a reply which says not going to go over my points in detail (or at all actually) and basically repeats demands but also offers to sell me part of the land of the ROW. I write back saying that I think they are basically selling me what I already own, and lumping me with the cost of the wall repair, and I don't think this is a clever move on their behalf as it reduces the connection to the highway for NfH to just their driveway. All new services to them would need to come in via the driveway (unless of course I agreed to them crossing my land - guess my answer to that....). Plus this is clearly at attempt to rewrite the ROW to exclude the tree they have planted on the current ROW. I note also that this shows they have no objection the idea of the wall removal that cannot be bought off. I reciprocate the solicitors 14 day limit saying I expect a reply with 14 days otherwise I will consider the matter settled.

I receive no reply nor any claim of wall ownership. I start to remove remainder of wall. NfH brings over large friend who lays hands on me and is verbally abusive too. This is filmed by my wife. NfH and me both call police. NfH tells police not sure about the wall i.e. will suggest wall is theirs when it suits but won't put this in writing. Police suggest I settle who owns the wall before going any further. Not the answer I would have liked but then police are not law experts. I write to NfH saying that this is getting out of hand as their friend technically assaulted me. I say I won't do any more to the wall until the matter is settled. I propose we look to mediation, either informal with a third party or formal (paid) mediation. They write back to say they will attend mediation if I want to pay for it. I reply that mediation is usually paid for by both parties so there can be no suggestion of bias. They agree to my suggestion that I look into this and its cost. I report that Council offers no mediation and most appropriate seems to be to use RICS members, total cost about £1000 each.

NfH refuse professional mediation on the grounds of cost. I've found local councillor who has agreed to chair (and minute) meeting. I think 3rd party will keep a lid on things as NfH have abused us in the past. This is still to come but all I expect from this meeting is a chance to say what I have put in writing before and ensure that they have all of the facts. Maybe I'll be surprised. In the expectation that I won't I want to look at how I take out an injunction. Hence, how much detail should I go into? Every single letter or will this mean the meat of the argument is lost? Is NfH harassment relevant given that I don't have proof it was them, Council won't release such information. My feeling is that I should stick to the legal argument, and supporting letters to show how I have done everything possible not to waste the court's time. Maybe just mention that there has been harassment by parties unknown?

Congrats to all who read to the end....

mr sheen
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Joined: Fri Feb 27, 2009 2:33 pm

Re: Obtaining ROW injunction

Post by mr sheen » Wed Sep 20, 2017 7:08 pm

Lots of assumption here.
Lots of confusion about the right of way. No assumption can be made for lorry deliveries.
Can we concentrate on the specifics of the right of way to see what the issues are.
What is the wording of the right of way? Was the rOW purchased from the neighbours or their predecessors? For money?
We need facts to be able to assess the matter. Gossip and hearsay is no use I'm afraid.
When you post the exact wording of the right of way and confirm that it is via grant and purchase as oppose to prescription, and that it goes from highway to property, we will be able to help.

Did PC imply there was a ransom strip....what happened with this?

Posts: 55
Joined: Mon Aug 21, 2017 8:16 am

Re: Obtaining ROW injunction

Post by beardsince1978 » Thu Sep 21, 2017 9:05 am

ROW is land registry title and was part and parcel of the plot sale. Land registry entry says
(16.10.1986) The land has the benefit of the following rights granted
by the Transfer dated 12 September 1986 referred to in the Charges
The right of way for the Transferee and her successors in title over
and along the land hatched brown and orange on the said plan with or
without vehicles from and to the public highway subject to the
Transferee and her successors in title paying the full expense of
maintaining and repairing the land hatched brown and paying a fair
proportion of the expense of maintaining and repairing the land hatched
The said Transfer also contains the following covenant by the
"Not to park any vehicle or in any other way to obstruct the land
hatched brown and coloured orange on the said plan"
Land registry has coloured it all brown but the obvious intention is I solely pay for the bit I only drive over and I share the cost for the bit we both drive over.

The ROW came with the sale of the plot of land, with was sold as an empty building plot with outline planning permission.

Mr A obtained outline planning then sold house and plot with planning to Mr B. Mr B renewed outline planning and sold plot to my mother. I was around at time so have memories of what occurred. Mr B sold house to Mr C.

The ROW is dated same as transfer. Since outline planning shows a different entrance there must be some reason for this route not to have been used and instead the seller give up 100m2+ of his front garden for a ROW. Given the ROW is same as transfer then there must have been some agreement to purchase, or maybe even exchange of money, then the problem arose, then the change in access, all before the land was actually transfer since ROW has the same date.

I take your point about lorry deliveries however, ROW was before house was built and as part of building plot sale so stands to reason that agreement was for lorry access so that house could be built. In addition house is a long way from road. Building regs on fire say if dwellinghouse is more than 45m, which is it, then there should be access for fire engine and fire engines are same size as lorries. Hence there is argument for easement by necessity too I believe.

PC said (my and wife's memory of what my mother told us) that cost to cross land would be £10k (in 1986) as PC owned land. Mother spoke to seller and hence current ROW that joins to sellers existing exit. I would assume that PC gave tacit permission for lorries to cut the corner over the grass as long as the wall was replaced and the grass restored. It wasn't in PC's interests to make much of a fuss since they didn't own the land which would have come out had they gone to court to prevent temporary access. As well of course and it being misuse of PC funds to do so.

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