Change of usage to right of way

Re: Change of usage to right of way

Postby mr sheen » Fri Nov 17, 2017 9:31 am

Prior to 1980 these were footpath access only.....most unlikely. The use of term 'path' is not a legal definition of access land and needs to be defined more precisely to assess the extent of rights over it.

Gates to tracks....forest tracks etc etc....this is very complicated. Wales is full of 'drover' tracks where farmers took their animals to local markets in villages; large estates were sub-divided and tracks were covered up and people started to believe they owned land that actually contains complex rights over it.

The road also appears to have public rights over it further complicating matters.

The assertions made by the OP will be tested to the limit by the defendant. The OP has the burden of proof if intending to seek an injunction. No such thing as hard facts, just interpretation of the evidence and this will be different by each party and a Judge will consider the balance of probabilities but the Judge will start from the presumption that the dwellers in the derelict property would have got back and fore to it with animals and basic agricultural machinery many years ago in line with how life was in these Welsh communities where people supported each other and worked together.

This is not cut an dried and before embarking upon costly legal battles that could proceed through multiple courts due to the complexity consider getting the opinion of a solicitor, or even a barrister, or possibly better...consider a negotiated solution.
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Re: Change of usage to right of way

Postby SmallWelshBarn » Fri Nov 17, 2017 9:58 am

ukmicky wrote:What do you mean road agreement and easement ?

From what I gather the garages are on the derelict cottage land that has no easement rights to use the road you own.If that is so he can use the easement to drive onto his original plot because the law will still consider the original land to have a separate identity to the land with the garages. Can he then travel from his original plot onto the other land with the garages is more complicated

He could try and argue ancillary rights where the law allows you to use a easement to gain access to other land that has no easement rights provided the use of the other land is only for the benefit of the dominant land, not the other land and the use is only for a minor purpose . However the garages benefit the other land more than they do the dominant land that owns the easement as the use of the garages raises the value of the other land quite a bit as it is still considered as a separate plot and parking cars on the other land is also not a minor use.

Harris vs flowers is the case that first set the precedent that said what he is doing is unlawful but that has now been superseded by newer cases like Giles v Tarry [2012] EWCA which I believe is the current leading case on the subject. Therefore the moment he puts his cars in the garage the use of your road to get to his land with his cars becomes trespass even if he moves them in a day later . So yes you can do something about it and could if you wanted gain an injunction due to him using the road to access land that has not right to benefit from the easement.

Did they gain planning permission to build the garages , I would be surprised if they did because the derelict cottage land would have lost any permitted development rights if the cottage has been derelict for many years.


The longer you wait the harder it will become to get the outcome you want if you were to go to court. You also would need before you got to court to hire a solicitor who can go through all the property deeds ,just in case you are missing something important.


Thank you for your answer and the case law link which is extremely useful.The previous owner applied and got planning permission. The planners probably did not even realise the garage was going to be built on land not belonging to the green land.

I have not wanted a battle but frankly some times one has to draw a line in the sand.

Again thank you for the advice.
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Re: Change of usage to right of way

Postby MacadamB53 » Fri Nov 17, 2017 11:38 am

Hi SmallWelshBarn,

In recent years the green land has stolen derelict cottages land and built a two story garage on it

define “recent years” please - how long ago the land was “stolen” and how long ago the garage went up is a relevant factor.

kind regards, Mac
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Re: Change of usage to right of way

Postby SmallWelshBarn » Fri Nov 17, 2017 1:59 pm

mr sheen wrote:Prior to 1980 these were footpath access only.....most unlikely. The use of term 'path' is not a legal definition of access land and needs to be defined more precisely to assess the extent of rights over it.

Gates to tracks....forest tracks etc etc....this is very complicated. Wales is full of 'drover' tracks where farmers took their animals to local markets in villages; large estates were sub-divided and tracks were covered up and people started to believe they owned land that actually contains complex rights over it.

The road also appears to have public rights over it further complicating matters.

The assertions made by the OP will be tested to the limit by the defendant. The OP has the burden of proof if intending to seek an injunction. No such thing as hard facts, just interpretation of the evidence and this will be different by each party and a Judge will consider the balance of probabilities but the Judge will start from the presumption that the dwellers in the derelict property would have got back and fore to it with animals and basic agricultural machinery many years ago in line with how life was in these Welsh communities where people supported each other and worked together.

This is not cut an dried and before embarking upon costly legal battles that could proceed through multiple courts due to the complexity consider getting the opinion of a solicitor, or even a barrister, or possibly better...consider a negotiated solution.


Its a single story small stone dwelling with a small kitchen / living room and one bedroom with an out side loo. Please except my knowledge of the land and the paths and how they run after all I do live here. The derelict cottage can be be accessed via a narrow foot path it has NO direct access. No parking any where near the path. To park and walk to the property would take about 20mins. Thats if you parked in place for passing cars single track road it would be a censored to get to with out access via my road.
I have attached a map of all the local footpaths. My land is marked as Path (UM) Next to the thick black lines You can see the private road this parallel to number 21this strip is the yellow lands property. I own from the bend in the road down past 21 & 22 al the way till it goes at a right angle.
All the registered footpaths are in black. You can see the derelict cottage is located between 21 & 22 it is the one wit no number.
Thus to access the cottage you would have to walk past 34 past 33 cut right along a very narrow gully in between 20 & 21 turn left down my road which is also a footpath then cross my verge climb a stile then you are in the cottage. That is the shortest rout.
The issue is the property with the illegal garage is using the road to access land he has no right to with a car period. The relevant case law provide should stop this.

Mac in answer to your question the garage was built in 2010.
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Re: Change of usage to right of way

Postby MacadamB53 » Fri Nov 17, 2017 2:25 pm

Hi SmallWelshBarn,

In recent years the green land has stolen derelict cottages land and built a two story garage on it etc To the annoyance of some of the neighbours this never actually bothered me...

did you ever have any dealings with his predecessor regarding the above?

kind regards, Mac
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Re: Change of usage to right of way

Postby SmallWelshBarn » Fri Nov 17, 2017 3:58 pm

MacadamB53 wrote:Hi SmallWelshBarn,

In recent years the green land has stolen derelict cottages land and built a two story garage on it etc To the annoyance of some of the neighbours this never actually bothered me...

did you ever have any dealings with his predecessor regarding the above?

kind regards, Mac


No I never had any dealings with the previous owner and the garage I never discussed it with him.
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Re: Change of usage to right of way

Postby mugwump » Fri Nov 17, 2017 4:14 pm

Monmouthshire Public rights of way map appears to show your road as a Byway open to all traffic going past your house and the cottage.

The one past your house is 375/310/1 which turns into 375/3/11/1 after the stile
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Re: Change of usage to right of way

Postby stufe35 » Fri Nov 17, 2017 4:33 pm

That puts a different angle on the situation
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Re: Change of usage to right of way

Postby SmallWelshBarn » Fri Nov 17, 2017 4:53 pm

mugwump wrote:Monmouthshire Public rights of way map appears to show your road as a Byway open to all traffic going past your house and the cottage.

The one past your house is 375/310/1 which turns into 375/3/11/1 after the stile


No its not I have just looked on line and just called the local council to make sure it is designated as a footpath and not a Byway.
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Re: Change of usage to right of way

Postby pilman » Mon Nov 20, 2017 12:49 pm

The red and blue roads were constructed in the 1980's by the owners of the yellow land and blue land constructing them. Before that they were simply a garden and a field belonging to each of the properties hence no one had a right of way over them.
If that is the known fact regarding when this road came into existence, it seems surprising that a Local Highway Authority consider there to be public rights of way, whether that be as a public footpath or as a BOAT.

Harris v Flower [1904] still is the legal authority regarding what land can use a granted right of way.

Lord Justice Romer's judgement included the phrase now referred to as "the Rule in Harris v Flower"
“If a right of way be granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B.”

This seems to be the situation being described in this posting.

The garage is built on "Close B" rather than on the land that was identified as "Close A" which was the only dominant tenement when the deed of grant was executed.

On those facts there is a trespass over the road every time a car is driven to and from the garage, which will support a claim for damages and an injunction to prevent use of the road to access this non-dominant land.
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Re: Change of usage to right of way

Postby jdfi » Tue Dec 05, 2017 12:02 am

Would the owner of the garage (which may be on land that is adversely possessed) not get an easement of necessity though?

Off topic: any chance of seeing some pics of the cottage that hasnt been lived in since 1978? I love things like that.
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Re: Change of usage to right of way

Postby ukmicky » Tue Dec 05, 2017 2:17 am

jdfi wrote:Would the owner of the garage (which may be on land that is adversely possessed) not get an easement of necessity though?

Off topic: any chance of seeing some pics of the cottage that hasnt been lived in since 1978? I love things like that.





For there to be an easement of necessity the land with the garage on would have to have been part of a larger parcel of land with included the road which was then split and the portion with the garage sold off with the only way to access it being the road. Even then an easement of necessity would only provide foot access.

You don't get an easement of necessity simply because without it you have no access.
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