Right of Way - planning material consideration or not?

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beardsince1978
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Right of Way - planning material consideration or not?

Post by beardsince1978 » Sun Feb 18, 2018 6:49 pm

Hi,

I've read statements that rights of ways are not a material consideration for planning, but does that just relate to building over a RoW? I'm looking to put in a new access and I've had pre-planning advice. Pre-planning said it would likely be refused and one of the reasons raised was that I already had an access via a RoW (NfH hence I want a direct access). I wonder now if pre-planning should have ignored the existing access as being not material to the application? That is it should have been treated as blank canvas, "would this plot have got planning permission for a new house with a direct access to the road where the new one is planned?".

I can see a certain logic in this since if you say the RoW is a material consideration then you also have to consider the applicants claim that the ROW is unusable because of the behaviour of the RoW land owner. Planning then have to act as judge which is outside their remit. It would seem more sensible for planning just to look at the new access alone. I presume the same might apply if say I planning an extension that would block an exist entrance and therefore require a new access. Planning couldn't refuse an application just because it needed a new entrance, could it, assuming that the new entrance would have been passed if it was the only entrance?

TIA

jdfi
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Re: Right of Way - planning material consideration or not?

Post by jdfi » Thu Feb 22, 2018 9:13 pm

beardsince1978 wrote:Hi,

I've read statements that rights of ways are not a material consideration for planning, but does that just relate to building over a RoW? I'm looking to put in a new access and I've had pre-planning advice. Pre-planning said it would likely be refused and one of the reasons raised was that I already had an access via a RoW (NfH hence I want a direct access). I wonder now if pre-planning should have ignored the existing access as being not material to the application? That is it should have been treated as blank canvas, "would this plot have got planning permission for a new house with a direct access to the road where the new one is planned?".

I can see a certain logic in this since if you say the RoW is a material consideration then you also have to consider the applicants claim that the ROW is unusable because of the behaviour of the RoW land owner. Planning then have to act as judge which is outside their remit. It would seem more sensible for planning just to look at the new access alone. I presume the same might apply if say I planning an extension that would block an exist entrance and therefore require a new access. Planning couldn't refuse an application just because it needed a new entrance, could it, assuming that the new entrance would have been passed if it was the only entrance?

TIA
Is there a reason why permitted development may not apply?

http://www.legislation.gov.uk/uksi/2015 ... ule/2/made

Schedule 2, Part 2 'minor operations' Class B 'means of access to a highway'

Also read part 2 Class A 'gate'

and part 1 class F 'hard surface'

(though note, PD will NOT permit you to drop a kerb, which remains subject to whatever process your council has, approved contractors, etc)

arborlad
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Re: Right of Way - planning material consideration or not?

Post by arborlad » Thu Feb 22, 2018 9:34 pm

arborlad

smile...it confuses people

beardsince1978
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Re: Right of Way - planning material consideration or not?

Post by beardsince1978 » Fri Feb 23, 2018 7:55 am

Thanks for the link to PD legislation. The road I would directly access is a class C road so not unclassified.

I have found this statement in a Shropshire council pdf (I'm not in Shropshire BTW) "Practice Note: Material Planning Considerations"

"CONSIDERATIONS THAT ARE NOT MATERIAL"
"Private rights of way
Private rights of way are in the control of the person holding the rights.
Planning permission cannot grant private rights of way that otherwise do not
exist, nor can planning permission override private rights of way that do exist.
Nevertheless planning permission will not be granted for developments where
the proposed access is inadequate."

That seems reasonable to me. In the same way that if I wanted to move an existing access over verge to another place over the verge then it is reasonable to take into consideration that there is an existing access. You need to look at the pros and cons of both accesses and the reasons for the need of a change of access.

The key bit I think is planning cannot grant a RoW that doesn't exist. I need to show that the current RoW is too restricted as the reason for needing a direct access. Planning cannot assume that the NfH will agree to making the entrance wider as that would be granting something that doesn't exist. That also applies to overhanging bushes as well. Since you don't have an automatic right to cut bushes and branches back to the boundary of a RoW, it would depend if the court saw them as an obstruction or not, then planning can't assume that the overhanging bushes will be cut back as that would be granting a RoW (width/height) that doesn't exist.

jonahinoz
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Re: Right of Way - planning material consideration or not?

Post by jonahinoz » Fri Feb 23, 2018 9:11 am

Hi,

My present house had a covenant preventing parking in the front garden ... it was once owned by the LA. I asked the LA to lift the covenant. They replied that I would need permission from the Highways Authority to drop the kerb before they would lift the covenant.

I think the LA and HA each charged £100 to £150, but there was no mention of planning permission. My street is unclassified. It cost me £1,500 to have 6m of kerb dropped.

There was something on Google to say that permission may not be granted if the property already had vehicle access. I think that was an HA rule.

John W

beardsince1978
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Re: Right of Way - planning material consideration or not?

Post by beardsince1978 » Fri Feb 23, 2018 9:53 am

I think it all depends. In towns highways isn't keen on dropped kerbs as they reduce parking spaces on the street so usually in towns you can have one entrance only. Hence I would think you'd have to remove the old dropped kerb if you wanted to install a new one which would make it expensive.

pilman
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Re: Right of Way - planning material consideration or not?

Post by pilman » Sat Feb 24, 2018 11:54 am

There are two points to be considered.

Firstly it is correct that a planning application should not be concerned with the fact that there is an existing right of way.
It is quite common that an existing right of way needs to be replaced with a new vehicular access for all sorts of reasons, so an existing unsuitable access should not be a material planning consideration.

Secondly it is correct that a planning application can include land not in the ownership of the applicant, which I think is the case here.
The application will need to show that there is land not in the ownership of the applicant with the appropriate Certificate of Ownership completed on the application form.
A Notice will also need to be served on the legal owner.
This has to be done in order to allow the true legal owner the opportunity to comment on the application.

Then even if planning permission is granted, the applicant has no legal right to use land belonging to someone other than the applicant.

That is a breach of Land Law and would be a trespass, as soon as work was started to resurface this area of land between the application site and the road.

A further application to have a dropped kerb approved is yet another aspect of development that has to be decided by the Local Highway Authority.

All three legal aspects of the development will need to be carefully considered.

beardsince1978
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Re: Right of Way - planning material consideration or not?

Post by beardsince1978 » Sat Feb 24, 2018 1:12 pm

FYI I believe the land to be highways verge so I think I have an automatic right to have an access over this land, subject to highways dropped kerb approval. Highways tell me that when they grant dropped kerb approval that is all I need.

This land was originally claimed by the parish council but now they have been pushed on that they now say (in writing) that it is manorial waste land. Highways act makes waste land next to road highways' verge. The land has been used by utilities as highways verge since they have put drains and cables underneath it, telephone poles in it and telephone cables above. Openreach pay no wayleaves and know of no owner and the poles have been there for over 30yrs to my knowledge.

Also, my research has found an old map showing the far end which is now verge used to be part of the highway. This is a 1900s map and I'm guessing that the highway was unmetalled (its a hamlet). When it was tarmaced they reduced the width and the edge became verge. The access was probably not tarmaced either as it was field back then. This access was mentioned in 1982 and the gate for this access in on a county surveyor's sketch of 1986. There is no record of this access being legally stopped up. There are now trees on what was this access so my application routes the access a bit to the west to clear these trees. The trees were planted by a neighbour given "carte blanche" to plan trees on this land by the Parish Council (without asking the opinion of the householder who fronted on to this land!). The trees were planted over services and even directly under telephone cables. There was no section 96 license of course.

Planning did come back and say I haven't filled in the right ownership certificate but I've explained to them why I think it is highways verge and they haven't raised ownership since.

arborlad
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Re: Right of Way - planning material consideration or not?

Post by arborlad » Sat Feb 24, 2018 1:17 pm



Duplicate thread - not helpful - you're just going over the same old ground :roll:
arborlad

smile...it confuses people

beardsince1978
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Re: Right of Way - planning material consideration or not?

Post by beardsince1978 » Sat Feb 24, 2018 1:53 pm

I was trying not to duplicate which is why I asked a specific question but as we've drifted outside of that and posters have made assumptions I thought I should give correct info rather than leave incorrect assumptions unanswered. But I think the original question has been answered so thanks all for that.

pilman
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Re: Right of Way - planning material consideration or not?

Post by pilman » Sat Feb 24, 2018 8:18 pm

FYI I believe the land to be highways verge
Can you confirm that you have received a response from the Highways Authority after making an application to have a map provided that showed the extent of the adopted highway, or is it the case that you have made the assumption that it is part of the adopted highway.

Unless you can confirm that the land you intend crossing is part of the adopted highway my earlier comment about the legal situation under land law is relevant.

The question of what happened to land that was deemed to be manorial waste is not an easy one to deal with, as this subject was put before Parliament in 1966 when an Act to deal with manorial waste was proposed.
http://hansard.millbanksystems.com/comm ... ial-wastes

In 2015 there was another discussion about manorial rights that mentioned manorial waste.
https://publications.parliament.uk/pa/c ... /65704.htm

jonahinoz
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Re: Right of Way - planning material consideration or not?

Post by jonahinoz » Sun Feb 25, 2018 8:20 am

Secondly it is correct that a planning application can include land not in the ownership of the applicant, which I think is the case here.

Hi Pillman,

I thought that the original mail suggested that the OP wanted access accross land that he owned, despite already having a ROW over a neighbours land. Anything else would require access across a neighbours land ... either the NFH's, or somebody elses. Can the Highways Authority take into consideration that the OP's existing access is via an easement that is apparently in dispute/sporadic?

It is an offence to park across a dropped kerb (Google). The LA (if they can be bothered) can issue a fixed penalty notice, and in some cases it can be endorsable. However, it is possible to ask the LA to grant permission to park across your own dropped kerb. I wonder about the criteria for granting that permission? What would happen if the OP requested permission to park across his easement? Would he have the right to appeal?

<<< In towns highways isn't keen on dropped kerbs as they reduce parking spaces on the street so usually in towns you can have one entrance only. >>>

My house fronts onto a double yellow line, but parking on the other side of the road is allowed, but leaves room for only one car to pass along the one way system. If everybody had dropped kerbs, there would be no room for anybody to park on the road. On the other hand, there is only room to park one car across a 20ft frontage, but room for two cars in the front garden. Not a problem for the occasional delivery van ... the three vans in the picture were there for a couple of days, but didn't cause any real problems. But you can't have friends visit if you have two cars (Not my problem, I've got parking for another three cars in the back garden). The LA seen "not bovvered" by transit vans parked overnight on the double yellows on the corners.

Is there anything to prevent Beardsince from parking on the highway, and would it concentrate the HA's minds?

John W

beardsince1978
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Re: Right of Way - planning material consideration or not?

Post by beardsince1978 » Sun Feb 25, 2018 9:24 am

Short summary so as not to duplicate too much. Current access is via RoW but with NfH I want a direct access. 1st outline planning permission (1982) had direct access approved although at that time PC claim to own land and said wouldn't sell (minuted meeting/letters). However application said "existing" access to be improved. House with this plot to sell changes hands. Plot sold in 1986 by new owner. PC says (witness statement, no written record) we want £10k for crossing our land (~£50k today or £7.8million/acre). Seller and buyer reroute access to be RoW to join up with seller's exit. Seller moves and their house is now owned by NfH. This plot was owned by my mother who built a bungalow, now mine and is house half finished.

Map for 1900s shows land in question was mostly a pond but east end was wide section of road which gave access to corner of plot and east neighbour. East neighbour still has access (concrete drive). 1986 report details gate in corner of my plot which implies an access.

I'm told UK courts have ruled that “highway” runs from hedge to hedge and includes verge and waste land (East v Berkshire County Council (1911), Evelyn v Mirrielees (1900)). Highways Act 1980, section 130 also claims waste land as highway. So now PC have dropped their claim and said it is waste land I think that makes it highway. Before Highways have said it is not their land (when PC were claiming it). Planning have included Highways, and Rights of Way as consultees but no response from them is shown yet. Don't forget this is a class C road and the land is between carriageway edge and private boundary wall. It's unregistered land BTW.

When it was pond it required regular expensive cleaning so PC tried to get Highways to pay for that or to fill it in and widen road. Highways didn't want to pay for it so pushed it back to PC (Public Health act 1936, PC responsible for ponds). Eventually council houses were built and then the free waste used to fill in pond (PC nor Highways had money otherwise). Highways and PC split cost of connecting road drain to sewer (pond took road run off before). Highways eventually topped it with soil and seeded it.

In case it is useful, PC (1950s) did look at installing lock up garages for rent on this land but found there was no mechanism that would allow them to do this.

Thanks for links BTW.

beardsince1978
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Re: Right of Way - planning material consideration or not?

Post by beardsince1978 » Sun Feb 25, 2018 9:43 am

It occurs to me that Highways/PC have behaved as though it is council land. Otherwise they used someone else's pond as tip, and at one time a store for road chippings.

pilman
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Re: Right of Way - planning material consideration or not?

Post by pilman » Sun Feb 25, 2018 11:01 am

Going back to the first question in this posting, an application to have a new access should not be dependent on already using a private right of way to access the plot.

I think that the pre-application advice was incorrect in claiming that this was a material planning consideration.

The only planning consideration would need to be based on matters regarding Highway safety if the new access was to be approved from the C category road.

Vision splays will need to be established based on the speed limit of the road in question, but the fact that there is an existing private right of way over land owned by another party should not influence a planning decision.

If a planning application was to be refused on that point alone, then it certainly would stand a good chance of an appeal being successful.

It does mean that an application will need to be made to establish if the LPA will refuse it.

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