New member and this must be a first for this forum

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

Post by melbatoast » Mon May 14, 2018 10:17 am

Stufe,

Also, wording can be construed in a number of ways by different people, from some of what I have researched, Smith v Garrard being one example.

I see that what is on the ground suggests a right to exercise the full frontage of this property and that the servient owner appeared to agree to the removal of the boundary feature but, what if the hedge were owned by him and still in situ, does that not create a 2 -6 ft area between the ROW and the dominant owners property?

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

Post by stufe35 » Mon May 14, 2018 11:15 am

Whats on the ground is not relevant in this case because the easement is clear.. Look at the wording and the plan with the yellow shaded area- it extends over the full length of the boundary. If a boundary feature was in existence belonging to the servient owner the clear intention is to allow its removal to allow access to the retained land otherwise details of the access point would be mentioned/shown.

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

Post by melbatoast » Mon May 14, 2018 11:30 am

Yes I see that.

I was just reading through Page v Convoy as that was the case with the white fence I referred to. Although it went to appeal the servient owner won the case that the dominant owner could not take access where he chose as he did not own the fence in question and could rightfully erect a fence where the original fence stood.( Para 37. If you have the inclination)

Again there are some differences but the judge seems to confirm that ownership of the fence stops access to the dominant land along the length of the ROW.

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

Post by melbatoast » Mon May 14, 2018 11:40 am

I am a servient owner and when the vendor, who has reserved a ROW over my land for the benefit of his retained land ( with almost identical wording in the grant as the OP has stated) he also reserved 3 extra access points along the way (which runs alongside his retained land for the full length). Why do you suppose he did this, just belts and braces?

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

Post by melbatoast » Mon May 14, 2018 11:44 am

Just to add these further accesses were not part of the grant but reserved separately

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

Post by stufe35 » Mon May 14, 2018 12:04 pm

As said; devil is in the detail on a case by case basis. The fact that in your case access points have been expressly mentioned demonstrates that the intention was that the rest of the boundary feature remains.

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

Post by peacemaker » Mon May 14, 2018 1:23 pm

Thank you for keeping the debate going, it's fascinating and revealing. So to surmise my current position:

1/ I can't remove the rubbish on the boundary as it's not a significant obstruction

2/ The road owner cannot erect a fence in the proposed position as it would be an obstruction to my ROW

3/ If I wish to create a new gateway along the ROW on my boundary, even though it would require removal of a section of an established hedge, the road owner could not prevent me to do from doing so. If I understand correctly, just because he decided to grow a hedge on the border of the road some time ago, it is actually an obstruction to my ROW and can be removed legally. Any advice on how I would go about this would be gratefully received so I don't fall foul of the law.

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

Post by melbatoast » Mon May 14, 2018 1:39 pm

Stufe 35,

So in Page v Convoy where accesses were not expressly reserved but the dominant owner could not take accesses where he chose?

OP, please be aware that what I said in reference to the building materials not being a substantial interference with your ROW is just my opinion as it appears from the photo that you can use the ROW for the intended purpose as practically and conveniently as before. I could be completely wrong about that but, how it looks to you ie untidy, doesn't apply.

I think it's great that through discussions on topics here we all become enlightened... apart from those who know it all anyway :D I

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

Post by melbatoast » Mon May 14, 2018 1:46 pm

By the way Stufe35, I am not referring to you! :D

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

Post by stufe35 » Mon May 14, 2018 2:47 pm

Its complicated this stuff, just had a quick ready of Page v convoy and im totally lost. It that devil in the detail thing.

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

Post by melbatoast » Mon May 14, 2018 3:09 pm

It does appear that it can go either way.

I guess also that the servient owner had expressly kept maintenance of the fence, but does this alone change the outcome?

I

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

Post by arborlad » Thu May 17, 2018 2:20 pm

Calvin&Charlie1 wrote:
Mon May 14, 2018 1:23 pm


1/ I can't remove the rubbish on the boundary as it's not a significant obstruction.........


Anything that is on your land can be removed, irrespective of easements or appearances.
arborlad

smile...it confuses people

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

Post by peacemaker » Mon May 21, 2018 1:14 pm

Hi Arborlad
The rubbish is actually on his boundary but is causing a minor obstruction to my ROW.
Thanks

MacadamB53
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Re: New member and this must be a first for this forum

Post by MacadamB53 » Tue May 22, 2018 11:03 am

arborlad wrote:
Sun May 13, 2018 7:16 am
Calvin&Charlie1 wrote:
Sun May 13, 2018 12:18 am
A couple of days ago, it doesn't look a lot of rubbish in the pic but it's a square metre and it's unsightly and you have to swerve to avoid it.

Then we should be seeing a hedge with gates leaning against it............
Hi OP,

you don’t appear to have addressed this important point...

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

Post by peacemaker » Thu May 24, 2018 8:52 pm

Hi MacmadamB53,

Pic attached of the hedge with gates leaning up against, somewhere along this hedge I would like to create a new gateway so need to understand how to go about it seeing as I've now been advised that the hedge is obstructing my ROW along my boundary as per the title plans illustrated on page one. Not sure if it makes a difference or not but the hedge was planted before I moved here four years ago.

Not too worried right now about the fence being erected in front of my entrance as I hope the letter has deterred him from doing so.

Thanks
Caley

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