Hedge Preventing My Right of Way

homefromhome
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Hedge Preventing My Right of Way

Post by homefromhome » Mon Nov 06, 2017 5:17 pm

Hi All,

Looking for some advice if possible, we have a large garden that backs onto a private road - This road is private and has a house at the end of the track along with a large stable yard. The yard is run as a business and has people / Horses / Cars running up & down at different times during the day.

We have a farm gate at the end of the garden and we completing some landscaping - to ensure the trucks can pull off the road and onto our property we have widened the gate and removed around 1metre of hedge. We did inform the owner that we needed to remove the hedge so the lorry can swing off the road safely and onto our property.

My question is - I have a conveyance given to me at the time of purchase and is confirms my right of way seems to be noted as “at all times and for all purposes”. Of course this right is subject to repair and maintenance and I have no problem contributing costs towards the road. The issue is the hedge, it is on the farmers side but affectlivly it is preventing me access to my property, they have asked us to re-instate the hedge and if we dont within 14 days she will do it herself and invoice us - We havn't finished the landscaping so do not want to add the hedge then remove it again for further trucks??

So what does my right of way “at all times and for all purposes” mean? Do I have access to "any" part of my garden and does that mean I can ask for the whole hedge to be removed as its stopping me from accessing my land? We dont want to remove it BUT I'm trying to understand my legal stance. I read a thread that mentioned a similar case - Emmett V Sisson and if favoured the people with a Right of Way BUT before I go back to the owner I'm trying to get my ducks in a row.

The grey in this is if they plant a hedge (or the predecessors do and they inherit it) and its been there, on their land, for ages and I chop it up I am, undoubtedly damaging their property BUT in order to exercise my right of way?

Thanks in advance for the advice.

MacadamB53
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Re: Hedge Preventing My Right of Way

Post by MacadamB53 » Mon Nov 06, 2017 9:07 pm

Hi homefromhome,

the devil may be in the detail - please may we see the exact wording of the RoW (and a sketch of the plan if possible).

kind regards, Mac

stufe35
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Re: Hedge Preventing My Right of Way

Post by stufe35 » Mon Nov 06, 2017 10:13 pm

On the face of the info you've posted so far, you are probably quite right and emmet v sis applies, but as Mac says, the devil is in the detail. As he says exact wording and any associated plans, plus a sketch would help you get accurate answers. I think you need to do 3 postings before you can attach sketches etc.,

homefromhome
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Re: Hedge Preventing My Right of Way

Post by homefromhome » Tue Nov 07, 2017 7:33 am

Thanks All. I will follow up with more detail.

homefromhome
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Re: Hedge Preventing My Right of Way

Post by homefromhome » Tue Nov 07, 2017 7:34 am

Hopefully it will allow for a picture to be sent.

arborlad
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Re: Hedge Preventing My Right of Way

Post by arborlad » Tue Nov 07, 2017 10:10 am

homefromhome wrote:We have a farm gate at the end of the garden and we completing some landscaping - to ensure the trucks can pull off the road and onto our property we have widened the gate and removed around 1metre of hedge. We did inform the owner that we needed to remove the hedge so the lorry can swing off the road safely and onto our property.


The devil is in the detail but I'm not aware of any case law or precedent that will allow you to remove someones hedge and change the size of a gate to facilitate better access to your property, this is usually achieved by negotiation and suitable compensation for the owner.
arborlad

smile...it confuses people

stufe35
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Re: Hedge Preventing My Right of Way

Post by stufe35 » Tue Nov 07, 2017 10:21 am

Aborlad, In which case you should read Emmet v sissons, which I believe sets exactly this precedent so long as the right of way runs immediately adjacent to the dominant land, and the wording does not preclude it. Depends if there was a boundary feature in place at the time the deed was granted. It could apply in this case...it also might not.
Last edited by stufe35 on Tue Nov 07, 2017 10:33 am, edited 1 time in total.

homefromhome
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Re: Hedge Preventing My Right of Way

Post by homefromhome » Tue Nov 07, 2017 10:30 am

Hi All,

I have created a link to the Conveyance report - https://www.dropbox.com/s/dle2z59p88j3i ... y.pdf?dl=0

But will also try and up-load this - Page 5 / Line 7 states - With a right of way at all times hereafter and for all purposes in over and upon the road shown as "new Road" on the said plan.

I look forward to hearing from you.

stufe35
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Re: Hedge Preventing My Right of Way

Post by stufe35 » Tue Nov 07, 2017 10:54 am

You say the hedge is on the servient owners side. Does this mean there is another boundary feature the represents the boundary line (eg a fence) then a hedge in front of the fence (effectively on the new road) which is the one to which you refer ?

homefromhome
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Re: Hedge Preventing My Right of Way

Post by homefromhome » Tue Nov 07, 2017 11:09 am

Hi Stufe35,

Yes - we used to have an old wooden post fence but this fell down - It was never replaced as the farmers hedge (planted on farmers land) is acting as the boundary but belongs to the farmer. We have a farm gate and the wooden Posts from the gate give the line of the boundary (behind a 1 meter depth hedge).

Hope this makes sense.

MacadamB53
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Re: Hedge Preventing My Right of Way

Post by MacadamB53 » Tue Nov 07, 2017 11:35 am

Hi homefromhome,

it seems there is land between the edge of the “new road” and your property - on which the owner has planted a hedge.

you do not own a RoW over this strip of land.

I’m sure you can work out the rest and will not be seeking to remove any more of the hedge without negotiating permission from the owner first.

kind regards, Mac

stufe35
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Re: Hedge Preventing My Right of Way

Post by stufe35 » Tue Nov 07, 2017 11:44 am

In which case base on what you have told us so far, it seems to me the hedge is actually planted on the right of way (ie the bit defined as the new road) and as such is an interference. Hence the principles established in Emmet v Sisson would apply.

Please be aware though I am no expert and there are others better qualified on here who post from time to time. Please keep monitoring this thread for a week or so as im sure others will post their views on the situation. So often the circumstances can be reversed by the tiniest detail.

I certainly wouldn't start ripping the whole hedge out without more robust legal advice; but have a chat with your neighbour with regard to her 14 day deadline , and mention that you believe her hedge is a substantial interference with your right of way as per the case Emmet v Simmons and you believe you could ask her to remove it all to allow access anywhere along your boundary. This should at least buy you some time to complete your works and may make her go away all together.

Are you able to post a photo of the situation as this would further help contributors.

stufe35
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Re: Hedge Preventing My Right of Way

Post by stufe35 » Tue Nov 07, 2017 11:55 am

MacadamB53 wrote:Hi homefromhome,

it seems there is land between the edge of the “new road” and your property - on which the owner has planted a hedge.

you do not own a RoW over this strip of land.

kind regards, Mac

Why have you concluded this Mac, it appears to me the right of way extends to the OPs boundary and he could place his gate anywhere at any width, or indeed not have a boundary feature at all ? ( I could be wrong though !) cheers stu

homefromhome
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Re: Hedge Preventing My Right of Way

Post by homefromhome » Tue Nov 07, 2017 12:35 pm

Hi MacadamB53

Their is no land between us....It runs from my boundary to New Road - The Hedge has been planted but its still on New Road but has grown over time.

Thanks for looking and your comments.

MacadamB53
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Re: Hedge Preventing My Right of Way

Post by MacadamB53 » Tue Nov 07, 2017 12:44 pm

homefromhome wrote:Hi MacadamB53

Their is no land between us....It runs from my boundary to New Road - The Hedge has been planted but its still on New Road but has grown over time.

Thanks for looking and your comments.
the hedge has been planted on the “new road” as opposed to beside it? how are you able to establish this?

kind regards, Mac

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