Access from the back garden park (council land)

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paszczaqp@gmail.com
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Access from the back garden park (council land)

Post by paszczaqp@gmail.com » Thu Feb 22, 2018 11:29 am

Hi All

I would like to share the situation I found myself in and ask for comments.

Around 1 month ago I completed the purchase of my new home which is one of the 12 dwellings converted from a former nursing home. The whole development is adjoined to the Park owned and maintained by local council and surrounded by brick wall separating the residential part from the public part.

The property I purchased has a benefit of large wooden gate leading from my back garden directly into the Park and is lockable from the side side. When decided to purchase the house we thought that the direct access to the park was great advantage and we were told that the council maintains the pathway at the other side of the gate...

However now, 6 months later I was to find out that I don't actually have a right of access directly into Park from my property and there are shrubs which were planted some years ago in order to dis-encourage the access.

In the transfer deed, the only one covenant regarding access I can find says that no new ways of access to Park are to be created... but I understand that my access is already existing?

I managed to find out that people who rented this property before, tried to get council to sort out the shrubs in order to have a decent access to the gate and it was denied.

What do I do now? Can I go and tidy up the shrubs myself at night? :twisted: :D

I look forward to see some advise, comments.

Thanks

jdfi
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Re: Access from the back garden park (council land)

Post by jdfi » Thu Feb 22, 2018 9:05 pm

paszczaqp@gmail.com wrote:
What do I do now? Can I go and tidy up the shrubs myself at night? :twisted: :D

I look forward to see some advise, comments.

Thanks
Keep off the councils radar. Any official request is likely to get rooted to the legal team, who will deny your request.

A tidy up one evening (wearing the obligatory hiviz of course) is probably what I would do..... though assess and make your own decision.

Presumably the gate has been there longer than five years..... what about longer than twenty? The shrubs could be innocent planting or else they could be an attempt to block your access.....

MacadamB53
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Re: Access from the back garden park (council land)

Post by MacadamB53 » Fri Feb 23, 2018 9:03 am

Hi email,

how many of the other 11 dwellings have a gate? and shrubs on the other side? have any of them removed or cut back shrubs to clear access?

kind regards, Mac

jonahinoz
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Re: Access from the back garden park (council land)

Post by jonahinoz » Fri Feb 23, 2018 9:31 am

Hi,

Presumably the gate was for the nursing home ... one property only needs one gate. Presumably, the gate led, eventually, to a public highway, and would have acquired a precriptive easement (private ROW) for the benefit of the nursing home. That ROW may have time restrictions, if the park gates are locked at night.

As I see it, that ROW still exists, for you. It might be possible to contrive a ROW for all the other houses that were once part of the nursing home, but that is outside this discussion. Unless that ROW has been formally closed, with documentation, you still have the ROW, and have the authority to clear your way through the shrubs, but not otherwise improve thev access.

The deal breaker would be if the nursing home was owned by the LA ... they could not acquire prescriptive rights over their own property. Or the park may have given permission for the nursing home to use the gate for access, and permission can be withdrawn.

Are these shrubs planted where once there was grass that Joe Public could freely trample? It has been many years since I last saw a KEEP OFF THE GRASS sign. Similarly, signs saying NO CYCLING, and DO NOT THROW STONES AT THIS NOTICE. :?

John W

paszczaqp@gmail.com
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Re: Access from the back garden park (council land)

Post by paszczaqp@gmail.com » Thu Mar 08, 2018 12:52 pm

MacadamB53 wrote:Hi email,

how many of the other 11 dwellings have a gate? and shrubs on the other side? have any of them removed or cut back shrubs to clear access?

kind regards, Mac

Hi Mac, none of the other houses have a gate. This was the unique advantage of the property we bought. Does it matter?

Since last time post I spoke to the rep who was showing us around the house before we bought and he said that council will try to dis encourage us to use the gate, but they cannot really have a right to stop us... As he said " it would be the best for the council if the whole development now disappeared, since they sold it".
jonahinoz wrote:Hi,

Presumably the gate was for the nursing home ... one property only needs one gate. Presumably, the gate led, eventually, to a public highway, and would have acquired a precriptive easement (private ROW) for the benefit of the nursing home. That ROW may have time restrictions, if the park gates are locked at night.

As I see it, that ROW still exists, for you. It might be possible to contrive a ROW for all the other houses that were once part of the nursing home, but that is outside this discussion. Unless that ROW has been formally closed, with documentation, you still have the ROW, and have the authority to clear your way through the shrubs, but not otherwise improve thev access.

The deal breaker would be if the nursing home was owned by the LA ... they could not acquire prescriptive rights over their own property. Or the park may have given permission for the nursing home to use the gate for access, and permission can be withdrawn.

Are these shrubs planted where once there was grass that Joe Public could freely trample? It has been many years since I last saw a KEEP OFF THE GRASS sign. Similarly, signs saying NO CYCLING, and DO NOT THROW STONES AT THIS NOTICE. :?

John W
The gate was there for the nursing home, yes. And it led to the public open park at the other site of the wall. The park gates are open at all times, no time restriction.

How can I find out if there was a ROW or if it still exist? The park and the nursing home were years ago both owned by the council so perhaps there was no ROW in place.

The shrubs are planted in the spot just around the wooden gate and yes, its juts open area with grass, next to the playground so technically anyone can walk in there.. to the extent that kids tend to use our wall and shrubs as a immediate toilet...

Thanks for your comments

Pav

Clifford Pope
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Re: Access from the back garden park (council land)

Post by Clifford Pope » Thu Mar 08, 2018 4:21 pm

paszczaqp@gmail.com wrote: kids tend to use our wall and shrubs as a immediate toilet...


I can see why you particularly chose this one. :)

Volumiza
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Re: Access from the back garden park (council land)

Post by Volumiza » Thu Mar 08, 2018 7:11 pm

MacadamB53 wrote:Hi email,
:lol:

jonahinoz
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Re: Access from the back garden park (council land)

Post by jonahinoz » Fri Mar 09, 2018 6:48 pm

How can I find out if there was a ROW or if it still exist? The park and the nursing home were years ago both owned by the council so perhaps there was no ROW in place.

Hi,

So no easement (I think), unless a previous resident of your house has been using for a long time.

There is nothing to stop your (unless there was a covenant agreed when the LA sold the building) knocking down your back wall in it's entirity, which is probabluy overkill.

I suppose you could argue that the LA sold a property with a gate, implying that you may use the gate. On the other hand, they might accuse you of damaging their shrubs. But then you could blame the kids of spraying the shrubs with noxious liquids. The LA could then percieve a need to erect a large and obtrusive brick-build "facility" in front of your gate. Be careful what you wish for. :lol:

Don't draw attention to yourself, just take a walk through your gate, and on to the nearest public highway, every Christmas (when the shrubs have died back, and Jobsworth, is sleeping off his turkey) for 20 years, and record it in a diary.

John W

MacadamB53
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Re: Access from the back garden park (council land)

Post by MacadamB53 » Fri Mar 09, 2018 11:24 pm

Hi John W,

Hi you could argue that the LA sold a property with a gate, implying that you may use the gate

better still, it could be argued the property comes with an implied easement because of the layout and use at the time of the original transfer.

kind regards, Mac

Collaborate
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Re: Access from the back garden park (council land)

Post by Collaborate » Sat Mar 10, 2018 7:55 am

Check the transfer in to your sole name. Was there a grant of quasi easements?

ukmicky
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Re: Access from the back garden park (council land)

Post by ukmicky » Mon Mar 12, 2018 12:08 am

This has nothing to do with prescriptive rights as the gate is owned by you and when you walk through it you are walking from your land directly onto public land.

Councils are granted legal rights allowing them to manage there open spaces through acts of parliament like the common act which allows them to manage the land and access to it by putting in place bylaws in order to protect the landscape and preserve nature .

You need to check if you will be breaking any bylaws if you access the land by going through any unauthorized access point ,the chances are if you cut back the bushes you will be. Break a bylaw and you are committing an offence punishable by the courts.
Advice given is not legally qualified and you are advised to gain a professional opinion

ukmicky
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Re: Access from the back garden park (council land)

Post by ukmicky » Mon Mar 12, 2018 1:10 am

Oh and good luck with your searching because some of these bylaws can go back to the 1800s
Advice given is not legally qualified and you are advised to gain a professional opinion

Collaborate
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Re: Access from the back garden park (council land)

Post by Collaborate » Mon Mar 12, 2018 6:59 am

ukmicky wrote:This has nothing to do with prescriptive rights as the gate is owned by you and when you walk through it you are walking from your land directly onto public land.

Councils are granted legal rights allowing them to manage there open spaces through acts of parliament like the common act which allows them to manage the land and access to it by putting in place bylaws in order to protect the landscape and preserve nature .

You need to check if you will be breaking any bylaws if you access the land by going through any unauthorized access point ,the chances are if you cut back the bushes you will be. Break a bylaw and you are committing an offence punishable by the courts.
You're quite right of course, and I'm happy to be corrected. No need for a prescriptive easement as OP would not be passing over 3rd party land. The only issue is whether OP has a right to insist on a clear path over the park immediately adjacent to their gate.

I suspect the answer to that is probably no - strikingly similar issues to this thread: https://www.gardenlaw.co.uk/phpBB2/view ... =4&t=21128

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