Change of usage to right of way

ukmicky
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Re: All Change in the court of appeal

Post by ukmicky » Fri Aug 17, 2018 10:34 pm

The word ancillary planning wise has a different meaning.

Gore v Naheed is not a passing through to get to other land case like yours and Harris and flowers so in some respects is treated differently .

My opinion is by building garages on the other land (which only can only be used in conjunction with the right of way) the value of the other land has been increased which makes the use substantial.

They also already have access to there property via the right of way so the use is not fundamental for the enjoyment of their property , which is a must for ancillary use .

By building garages on the other land solely for the use of the dominant tenement amounts to an enlargement of the dominant tenement, which ancillary use does not allow.

But there is always a but ,as you will have become aware by reading up on the subject ancillary use is not a straight forward area of the law like trespass so don't go into this thinking you will 100 percent win.
Any information provided is not legal advice and you are advised to gain a professional opinion

ukmicky
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Re: All Change in the court of appeal

Post by ukmicky » Fri Aug 17, 2018 11:54 pm

Your action will be one of trespass due them using the right of way to gain access to other land which will be decided on the rule in Harris and flowers unless the other side bring in ancillary use arguments.

You need to hope the other side don't bring in ancillary use arguments as ancillary use is such a complex area of the law, it will require a very costly court case that you will not have the knowledge or ability to argue yourself .
Any information provided is not legal advice and you are advised to gain a professional opinion

mr sheen
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Re: All Change in the court of appeal

Post by mr sheen » Sat Aug 18, 2018 8:40 am

Property B is a garage and additional space and hence ancillary to property A, it is not being used as a separate dwelling and is not being sold off as a separate piece of land claiming a ROW, so GvN can be argued.
Even if part is accommodation, it could be argued that this is for independence for disabled child/adult from property A or for infirm granny etc and is hence still ancillary use.
The insurers are right probably at best 50/50 chance....risky!
And as UKMICKY says will be a complex case requiring specialist law team for any chance of success.
Then we get to how could it be 'policed' since access to property A is via a ROW, how would you prevent getting to the garage of property A? As a result of this complication, an injunction may not be considered appropriate and an award of token compensation may be the result, but the costs will be massive.

arborlad
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Re: Change of usage to right of way

Post by arborlad » Sat Aug 18, 2018 10:25 am

Probably best to have your threads merged now: https://www.gardenlaw.co.uk/phpBB2/view ... =8&t=21268
arborlad

smile...it confuses people

pilman
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Re: All Change in the court of appeal

Post by pilman » Sat Aug 18, 2018 5:43 pm

The area coloured yellow on the conveyance plan included the entirety of the driveway shown on the plan as the Yellow land including the area marked "Garage" to which I shall refer in that way.
That is from the Court of Appeal judgement in Gore v. Naheed so in that case the garage had been built on the right of way that provided access to the adjacent building known as the Granary.
There is no room in this process for any legal distinction to be drawn between passing through and passing alongside cases. The physical differences between the two situations are simply facts to be taken into account in determining whether the alleged right of access can be said to have been consented to by the original servient owner as part of the grant.
Towards the end of that part of the judgement that concerned use of the garage for parking, that quote referred to all of the cases that had been used by the Appellants and the Respondents' barristers.
When the case was decided on the facts of that specific case the intention of the Grantor was given due weight by the judge.

That would seem to be equally a matter of fact if our Welsh poster was to insist that he had no intention of granting a right of way to the land occupied by the now derelict cottage, nor was that land part of a right of way to any other property.

It does seem that the insurer is taking full advantage of the recent case law when stating that the claim cannot have more than 51% of success.

It suits the insurer to deny the claim, although on the stated facts posted on this web-site this case does not came any where near the same facts as applied in the Gore case.
Mr. Gore's car was parked in a garage built on land that was part of the right of way.
If Mr. Gore exited the garage to walk to the front door of his dwelling he was exercising his right of way.
On the facts presented to the Judge and approved of by the Court of Appeal the use of the right of way was to park a car on one part of the right of way.

That is not was is happening in the case of a garage built on land near to the property of the man now parking his car in such a garage.

That is more like the case of Das v Linden Mews, which was referred to in the Gore case.
In that case the physical lay-out was very much the fact that resulted in the case being decided in favour of the owner of the right of way who never intended the road to be used to access land beyond the dominant tenement.

The problem with every court action is that only one side can win, even though two barristers will refer to any number of legal authorities in an attempt to persuade the judge that their client is the only who should win.

SmallWelshBarn
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Re: Change of usage to right of way

Post by SmallWelshBarn » Mon Sep 10, 2018 9:09 am

Just an update I have now lodged my application for an injunction and am awaiting a court date.

SmallWelshBarn
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Re: Change of usage to right of way

Post by SmallWelshBarn » Mon Oct 08, 2018 6:28 pm

The matter is listed to be heard on Wednesday. I have council booked to represent me. I phoned the court today as the neighbour in questions solicitor has not served a defence on me or on the court. One can only hope they don't !
Fingeres crossed for a good outcome.

span
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Re: Change of usage to right of way

Post by span » Tue Oct 09, 2018 8:24 am

Good luck, thanks for the update!

SmallWelshBarn
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Re: Change of usage to right of way

Post by SmallWelshBarn » Tue Oct 09, 2018 6:08 pm

Can any one help with some last min research ? They have submitted their defence by hand today at 5.30pm bit late in the day !!! One of the things I need to research is ..... it is submitted that, If the claimant brings and succeeds in a claim,damages would be an adequate remedy. It is difficult to see how the Claimant can suffer damages by passing and reposing over the road to access the garage in addition to the war coming from the other user (in particular, use to travel to the defendants main dwelling house) there is no greater is no greater volume of traffic involved in the defenders using the road access the garage, and in the event, that is harm that could be compensated for with an award of damages.

Surly I don't need to show damage all I need to show is that they are using my road to access land that was not granted in the original deed such as in Harris V Flowers. I have offered them ADR and a cost figure to amend the deeds which they have ignored.
I simply wish to enforce my rights as the dominant land owner.
Does any one know any case law for interim injunctions being granted for abusing and easement ?

mr sheen
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Re: Change of usage to right of way

Post by mr sheen » Tue Oct 09, 2018 9:59 pm

Please refer to my previous post.

It seems that the defence relates to issues that have already been alluded to in this discussion ie that there is no excessive use of the right of way; no additional passing and repassing and it is likely to be pointed out in court that it will be impossible to 'police' where to and from the passing and repassing is occurring. They are suggesting that an injunction is inappropriate (since impossible to police where users alReady have a right to pass and repass over and along the RoW) and that, if claimant does pursue and win the claim, an amount of money would be more appropriate.

I pointed out earlier that token compensation was a possible outcome of legal action in this case due to the argument of annexation ...there is also the potential for a ticking off for the amount of court time and costs that will be used up as counsel argue previous cases and technicalities where there are no damages and no excessive use.

You are represented by counsel...ask about putting in an offer 'without prejudice except for costs' for them to pay a set reasonable figure for 'damages' prior to the case starting...if they refuse and you win more than the offer,they will be liable for your costs which may be substantial.

SmallWelshBarn
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Re: Change of usage to right of way

Post by SmallWelshBarn » Tue Oct 09, 2018 10:27 pm

Thank you for the advice I shall do the above. In my statement I have offered ADR and a sum to settle the matter. So far they have spent 6.5k ouch

ukmicky
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Re: Change of usage to right of way

Post by ukmicky » Wed Oct 10, 2018 12:11 am

No do not do that . Do not do that unless you are willing to grant them an easement.

When the defendant is asking for an equitable remedy ( Damages in lieu of an injunction) Unless you are willing for that to occur ,you do not give any indication that you are willing to accept money.


That would be the first tick box ticked for a court to accept their request for damages to be paid rather than an injuction
Any information provided is not legal advice and you are advised to gain a professional opinion

ukmicky
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Re: Change of usage to right of way

Post by ukmicky » Wed Oct 10, 2018 2:26 am

This is not an increase of user. The land they are accessing has no easement rights ,this is an action to stop a trespass and all the OP needs to show to win is that the land being accessed through his land has no easement rights .

If that is done and the OP wins the court will then determine what the remedy should be and as the defendants have asked for damages in lieu to be considered the court will see if the circumstances of the case should allow such a remedy . The claimant will then be able to put his case if he wishes object to damages being paid in lieu .

If the OP here is sure he wants an injunction he will ensure the court is fully aware that the other land has no easement rights and that their attempt to gain a remedy of damages In lieu of an injunction which is an equitable remedy is an attempt by them to gain an easement through the backdoor by circumventing 100s of years of common law precedents that have determined how easements can be created .

He will also inform the court that the circumstances of this case are such that the defendants wish for a equitable remedy has no basis in law and would require the court to go against settled case law as to when an equitable remedy would be appropriate.

Shelfer v City of London Electric Lighting Co (1895)

The leading judgement that all courts have since followed Lord justice A L Smith said
“Many judges have stated, and I emphatically agree with them, that a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the Court to sanction his doing so by purchasing his neighbour's rights, by assessing damages in that behalf.

There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution for an injunction as authorized by this section. In any instance in which a case for an injunction has been made out, if the plaintiff by his acts or laches has disentitled himself to an injunction the Court may award damages in its place.
There have been no acts by me that would allow the general rule to be relaxed and therefore I ask the court to grant my injunction.
_____________________________________

So basically

Damages in lieu of an injunction so you get damages but they get a ROW is an equitable remedy rather than a common law remedy and Damages in lieu are only granted in exceptional circumstance ( EXCEPTIONAL CIRCUMSTANCES)

Firstly above everything else the land owners Common law right to deny a trespasser access to his land comes first and that right can as I said can only be denied under exceptional circumstances.

The courts are not there to be nice ,the courts are there to uphold the law and must follow case law when deciding if damages in lieu are appropriate and will not grant damages in lieu simply because no harm is being done or it will be hard to police, because firstly they have to uphold the claimants common law right first ,unless something has happened which the OP was party to that would now make it fair to deny him his rights to a common law remedy .

Example :Has the OP said something to the defendants that has lead them believe they are being granted an easement right and then done something due to relying on those words .
Without such an action their access onto the land is a wrongful act that they have no right to ask the court to sanction it .

One more thing , If a claimant wants an injunction the claimant should not indicate any willingness to accept money to make the matter go away .A court considering an equitable remedy must determine its fair to force the claimant to receive money in lieu of an injunction and by indicating a willingness to accept money ticks a box . It not enough on its own but it help the court with there decision making. If it was done as a real attempt to resolve the issue and to prevent the case going to court and the other side try to use it to show you were willing to accept compensation rather than an injunction the court can be asked to consider any correspondence with it on as correspondence sent under the without prejudice rules even without it written on it so therefore should not be allowed to be admitted as evidence. But that is at the discretion of the court so it best not to send anything mentioning money in the first place.


You have council so speak to him about it.
Any information provided is not legal advice and you are advised to gain a professional opinion

mr sheen
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Re: Change of usage to right of way

Post by mr sheen » Wed Oct 10, 2018 7:12 am

OP has already offered to settle for money

SmallWelshBarn
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Re: Change of usage to right of way

Post by SmallWelshBarn » Wed Oct 10, 2018 3:58 pm

I did not manage to succeed with my injunction as on the probability of harm the other side would suffer was marginally s more loss than the loss I would suffer.
The judge recognised and could see the issue from the papers and indicated that all parties need to work together to resolve the issue.
As my application was an injunction and unsuccessful they were awarded costs of £5400 ouch.
To be paid in 21 days.
Council will now give me his opinion to hand to my insurance stating that after examining all the papers I have a reasonable chance of success more than 70% insurance need it to be more than 51% so will now be going back to them.
Never the less I will be pushing the matter forward fresh application for a hearing. This I have a very good chance of winning.
Annoying that costs were awarded can I challenge this ?

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