New member and this must be a first for this forum

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peacemaker
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New member and this must be a first for this forum

Post by peacemaker » Wed May 09, 2018 10:13 pm

[no attachment=2]1 - Front elevation with proposed fence position highlighted in red.JPG[/no attachment]Hello All,

I decided to join last night as I can clearly see this is a wide-ranging and authoritive repository as well as being a fountain of knowledge. As new to the forum I wanted to avoid just registering, requesting some information without diligently researching to avoid duplication so instead I trawled through several sections going back eight years well into the early hours this morning and although interesting I haven't been able to confirm my query which, as the subject header states, has to be a first so it will be very interesting to receive your feedback.

I'll be succinct and stick to the salient points but just to add some context and background, I live in a semi-detached 1950s cottage which is located on farm that has been converted to residential dwellings which is in close proximity to an AONB more specifically in a special landscape area.

Our property is at the end of a road which is owned by our neighbour but which we have right of way including vehicular access.

Our current issue is that the neighbour wishes to erect a fence directly in front of our front door on the property boundary. I wasn't sure which forum section to post this message into as the topic is blend of boundary, fence and ROW.

My understanding is the definition of the highway has been extended to include private roads so unless I'm mistaken, our neighbour would be required to seek planning permission if he wishes to erect a wall or fence which exceeds 1m adjacent to the highway - please correct me if my interpretation is anyway misconstrued.

The more pertinent point in which I'm seeking guidance is actually on the positioning of the proposed fence, I've attached some photos for you to peruse and marked in red the exact location where the fence will be erected. As you should be able to gauge if the erected fence were to be 2m high then it would obstruct clear sightlines and splays to traffic on the private road - please note our neighbour has an antique showroom which attracts a constant flow of visitors and we have two small children that would have to step blindly into the road which of course is lethal when considering that there are no road signs, traffic controlling measures etc for visitors, collection & delivery drivers who are not use to the site.

Aside from the hazardous aspect, if our planning dept were to enforce that the fence is not to exceed 1m even then this introduces other issues such as access and egress vehicular manoeuvrability restrictions. In other words can our neighbour dictate as to where we enter and exit our property either on foot or by vehicle by erecting a fence on the boundary by his determination. Please note that there hasn't been a fence or wall on this particular section of the boundary in the four years we have lived here and checking sat images, there was a hedge which occupied the proposed location of the fence but that image is date stamped 1999.

Attachment summary:

1/ Front elevation with proposed fence position highlighted in red
2/ Side view with proposed fence position highlighted in red
3/ View from parking area - please note that the remaining unfenced area would only be 2m in with
4/ Ariel pic - private road highlighted in yellow and property boundary in red, please also note that this sat image predates the front extension witch is a mirror copy of next door's hence why our landscaping is not finished

I welcome any feedback, positive or negative as this issue is causing friction within our family as I have stress related symptoms which I'm trying to contain but does overspill onto my loved ones. You might be wondering what's all the fuss about as its only a fence but imagine if your neighbour was trying to effectively fence off the frontage of your property and in danger your children's safety which is a key driver for eliminating the danger prior to escalation. I haven't mentioned the visual impact but that is not a priority.

If you've got this far, thank you for taking the time to read to this point and I would be ever so grateful for advice.

peacemaker
Posts: 147
Joined: Tue May 08, 2018 9:12 pm

Re: New member and this must be a first for this forum

Post by peacemaker » Wed May 09, 2018 10:17 pm

Fourth attachment which wouldn't upload to first post for some reason.

Collaborate
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Re: New member and this must be a first for this forum

Post by Collaborate » Wed May 09, 2018 11:11 pm

You'll have to post the precise wording of the ROW, but it seems to me that you possibly have a ROW over all of the road from which you can access your property. It seems to me an unreasonable restriction to narrow the part of your boundary you can cross.Am I right in assuming that you can park a car in front of your house whilst remaining fully on your land? And that to do so you will need there to be no boundary feature?

peacemaker
Posts: 147
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Re: New member and this must be a first for this forum

Post by peacemaker » Wed May 09, 2018 11:55 pm

Hi Collaborate,

Thanks for the quick response, we can park a car alongside the front door if we so wish without parking over the boundary line but that would not be possible with a new fence on that particular section of the boundary.

Here is the wording from the title register..

A right of way with or without motor vehicles at all times and for all purposes for the Transferors and their successors in title (in common with the Transferees and their successors in title lessees tenants workmen servants agents and the other duly authorised by them so to do) over and along the road way shown coloured yellow on the plan annexed hereto leading from the retained land to the public highway SUBJECT TO the Transferor paying a fair and proportionate part of the maintenance thereof."
NOTE: The retained land referred to is the land in this title and the roadway coloured yellow referred to is reproduced on the filed plan.


Also attached are the deeds which are a lot clear then the sat image - green represents the proposed fence position, yellow the private road and red our property boundary.

ukmicky
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Re: New member and this must be a first for this forum

Post by ukmicky » Thu May 10, 2018 12:17 am

Forget the planning angle as it only covers vehicular highways that the public have an automatic right to enter onto like public right of ways . This is also not the first but it is an easy one to deal with .

He cant put a fence there. Well he can but if he did you could gain an injunction and force him to remove it. Provided you approached it properly and gave enough warnings that you will take legal action should he block your access you would also most likely be able to claim back your legal fees and maybe also gain damages.

The yellow ROW directly borders your land and due to the absence of any express wording restricting your path along the ROW or access from it to your land you legally you have a right to enter the ROW from any point where it borders your land.

If a fence is placed there it would restrict your access onto the right of way so would be an unlawful obstruction.

There is lots of case law but you only need Emmett v Sisson (2014) which is from the court of appeal which provides you with a precedent which your neighbour and his solicitor would not be able to argue against .The case is remarkably similar to yours even down to the the wording of the easement I believe.

https://www.pla.org.uk/2014/03/emmett-v-sisson/
http://www.bailii.org/ew/cases/EWCA/Civ/2014/64.html


Send him a letter informing him you have a right to enter the right of way at any point along the boundary of your land on foot or with a car and if he builds his fence you will gain an injunction to get the fence removed as well as claim damages and all your legal costs due to the substantial inference with your easement rights .

Send him details of the court of appeal case or even a copy of it and tell him to go see a solicitor if he thinks you are wrong.
Any information provided is not legal advice and you are advised to gain a professional opinion

Collaborate
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Re: New member and this must be a first for this forum

Post by Collaborate » Thu May 10, 2018 8:04 am

ukmicky wrote:
Thu May 10, 2018 12:17 am


The yellow ROW directly borders your land and due to the absence of any express wording restricting your path along the ROW or access from it to your land you legally you have a right to enter the ROW from any point where it borders your land.

If a fence is placed there it would restrict your access onto the right of way so would be an unlawful obstruction.

This is your answer.

peacemaker
Posts: 147
Joined: Tue May 08, 2018 9:12 pm

Re: New member and this must be a first for this forum

Post by peacemaker » Thu May 10, 2018 11:43 am

Hi ukmicky,

Many thanks for your articulated response, you have given me peace of mind and I''ll take your lead.

You have raised an interesting point regarding the yellow ROW and that I have a legal right to enter the ROW from any point where it borders my land. Please note there is an established hedge (see sat image) along the border and gates which are propped up against the hedge and are being used as fencing/railing. If I wished to add another access/exit point along the yellow ROW, I would be able to legally based on your advice.

How would you advise going about this in the first instance please as it would involve removing a section of the established hedge and removal of the metal gates currently used as fencing?

Thanks

SwitchRich
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Re: New member and this must be a first for this forum

Post by SwitchRich » Thu May 10, 2018 12:07 pm

Could you tell the forum why your neighbour wants to put a fence there at all? Seems like the only reason would be to antagonise you?

arborlad
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Re: New member and this must be a first for this forum

Post by arborlad » Thu May 10, 2018 12:15 pm

Calvin&Charlie1 wrote:
Thu May 10, 2018 11:43 am
How would you advise going about this in the first instance please as it would involve removing a section of the established hedge and removal of the metal gates currently used as fencing?

Thanks


Have you established who owns these?
arborlad

smile...it confuses people

peacemaker
Posts: 147
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Re: New member and this must be a first for this forum

Post by peacemaker » Thu May 10, 2018 12:20 pm

SwitchRich wrote:
Thu May 10, 2018 12:07 pm
Could you tell the forum why your neighbour wants to put a fence there at all? Seems like the only reason would be to antagonise you?
He doesn't like the appearance of our extension so wishes to screen it off.

peacemaker
Posts: 147
Joined: Tue May 08, 2018 9:12 pm

Re: New member and this must be a first for this forum

Post by peacemaker » Thu May 10, 2018 12:22 pm

arborlad wrote:
Thu May 10, 2018 12:15 pm
Calvin&Charlie1 wrote:
Thu May 10, 2018 11:43 am
How would you advise going about this in the first instance please as it would involve removing a section of the established hedge and removal of the metal gates currently used as fencing?

Thanks


Have you established who owns these?
No reference to actually hedge ownership in the deeds. If you go by the measurements on the OS map, which if I understand correctly has a 0.5m tolerance, then the hedge is on the border so exact ownership of the hedge is unclear. I suspect it was planted by the neighbour who owns the road though but just because he planted it on the boundary does he assume ownership. The gates propped up against the hedge to form a barrier are definitely his.

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Fri May 11, 2018 9:07 pm

Development has occurred as he received my letter today...

He has responded to my letter by dropping a letter back through my door as follows:

'In reply to your hopeful and incorrect comments,

You do not have any 'legal' right of way' to enter your property other than over a narrow 12 ft strip where a pair of Victorian gates hung until just a few years ago. I still have the gates as evidence.

And you will never be given the extra right of way that I allowed the previous owner at the frontage, who I believe will be happy to confirm this when the time comes.

I will be reinstating the front fence as was reducing your entry to 12 ft as it has historically been and I strongly advise you to seek legal advice before you continue with your weak and pathetic allegations.'


Let's analyse his response step by step...
  • He hasn't evidenced that he has sent this letter so can it be referred too in court?
  • My deeds do not state that I can only enter the property other than a narrow 12 ft strip! Instead the title register states:
A right of way with or without motor vehicles at all times and
for all purposes for the Transferors and their successors in title (in
common with the Transferees and their successors in title lessees
tenants workmen servants agents and the other duly authorised by them
so to do) over and along the road way shown coloured yellow on the plan
annexed hereto leading from the retained land to the public highway
SUBJECT TO the Transferor paying a fair and proportionate part of the
  • where a pair of Victorian gates hung until just a few years ago - I moved here myself a few years ago and there hasn't been anything on this boundary section in the last 20 years looking at sat nav images
  • So he has some rusty old gates as evidence - considering this was a farm its amazing that he some old gates lying around
  • He gave a previous owner extra right of way - seriously, when did he become a legal authority, no title deeds have been updated stating this[/i]
  • He will get in contact with the previous owner - really, from 20 years ago and what difference would that make - a witness in court?!
  • I have sat images going back to 1999 which showed a small hedge and even then that hasn't nothing to do with a ROW - is he getting boundaries mixed up with a ROW
  • He is going to reinstate the fence as its historically been - go for it but where is the legal basis for doing so, I don't think 'historically' is justification
  • He wants me to seek legal advice - ukmickey has provided excellent advice and solid case law
What does everyone think please?

stufe35
Posts: 820
Joined: Mon Nov 05, 2012 3:06 pm

Re: New member and this must be a first for this forum

Post by stufe35 » Fri May 11, 2018 10:39 pm

Calvin&Charlie1 wrote:
Thu May 10, 2018 12:22 pm
arborlad wrote:
Thu May 10, 2018 12:15 pm
Calvin&Charlie1 wrote:
Thu May 10, 2018 11:43 am
How would you advise going about this in the first instance please as it would involve removing a section of the established hedge and removal of the metal gates currently used as fencing?

Thanks


Have you established who owns these?
No reference to actually hedge ownership in the deeds. If you go by the measurements on the OS map, which if I understand correctly has a 0.5m tolerance, then the hedge is on the border so exact ownership of the hedge is unclear. I suspect it was planted by the neighbour who owns the road though but just because he planted it on the boundary does he assume ownership. The gates propped up against the hedge to form a barrier are definitely his.
I believe if the hedge/metal gates are on his land it is an interference to your right of way so you would have the right to remove it. If the hedge/metal gates are on your land its yours so remove it if you wish.
Last edited by stufe35 on Fri May 11, 2018 10:58 pm, edited 1 time in total.

stufe35
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Re: New member and this must be a first for this forum

Post by stufe35 » Fri May 11, 2018 10:44 pm

Calvin&Charlie1 wrote:
Fri May 11, 2018 9:07 pm
Development has occurred as he received my letter today...


What does everyone think please?
What did your letter say ?

From my understanding ukmicky has it right. (he usually does !) Emmet v sissons provides the evidence you need. Your easement appears to be quite clear, the yellow area directly abuts your land so you can pass at any point along it; whether or not there has been any fence in the past is irrelevant, it can be removed to facilitate the right of way that has been expressly granted.

arborlad
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Re: New member and this must be a first for this forum

Post by arborlad » Sat May 12, 2018 8:39 am

Calvin&Charlie1 wrote:
Wed May 09, 2018 10:13 pm
1 - Front elevation with proposed fence position highlighted in red.JPGHello All,



If this shows the current situation, where's the hedge?
arborlad

smile...it confuses people

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