Right of Way advice

Post Reply
DFB
Posts: 8
Joined: Tue Jun 04, 2013 7:27 pm

Right of Way advice

Post by DFB » Sun Oct 14, 2018 4:46 pm

Hi all,

I am writing on behalf of a neighbour who doesn't have computer access.
He owns a property with a private right of way/easement granted to the owner of a field at the back of the property. This field was originally allotments but 10 years ago was purchased by a private vendor and all allotments were closed down. It is a greenfield site so has not been previously developed.

A developer has applied for planning permission to build 40 houses on said site, entrance and exit through 2 other locations. They are proposing a public footpath/right of way from one side of the development to the main road outside our neighbours house - along the track that has the private right of way.

I understood that private easements were just that and could not automatically be turned into public rights of way. Can they just do this? What are his options as far as objecting/defending his legal position?

Secondly as the field has been allotments would the development fall under the remit of a radical change of use leading to the complete change of the field's original purpose? Obviously this would then lead to a substantial increase on the burden of the servient land?
Is this an avenue that is worth him pursuing?

Thank so much advance. :)

mr sheen
Posts: 2444
Joined: Fri Feb 27, 2009 2:33 pm

Re: Right of Way advice

Post by mr sheen » Sun Oct 14, 2018 5:20 pm

The owner of land can do whatever they like with the land that they own which includes the grant of a private right of way or offer the land as public right of way. The offer of public rights over land often satisfies requirements to get planning for developments. As long as the rights relate to land not owned by your neighbour then there is nothing he can do other than place an objection to planning.

His private right of way will remain and just be upgraded to open it up to the public generally.

ukmicky
Posts: 4946
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: Right of Way advice

Post by ukmicky » Sun Oct 14, 2018 5:41 pm

If I'm reading that correctly ,your friend dosent own an easement right to access the field he owns the land the easement /ROW runs over that provides access to the field . Is that correct ?





Yes , developing the land and placing 40 houses on it would cause a radical change of use that the easement was not granted for, which would be unlawful.

Only the owner of the land right of way runs over (if that's your friend) can allow its use to change to public footpath.
Last edited by ukmicky on Sun Oct 14, 2018 5:48 pm, edited 1 time in total.
Any information provided is not legal advice and you are advised to gain a professional opinion

DFB
Posts: 8
Joined: Tue Jun 04, 2013 7:27 pm

Re: Right of Way advice

Post by DFB » Sun Oct 14, 2018 5:42 pm

Thanks for responding.

Yes he owns the land the ROW passes over.

ukmicky
Posts: 4946
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: Right of Way advice

Post by ukmicky » Sun Oct 14, 2018 5:52 pm

DFB wrote:
Sun Oct 14, 2018 5:42 pm
Thanks for responding.

Yes he owns the land the ROW passes over.
So he will need to respond to the council and let them know he will not agree to its dedication as a PROW and will also need to let the developer know that the development will cause a radical change of use that will end the dominant tenements right to benifit from the easement.
Any information provided is not legal advice and you are advised to gain a professional opinion

DFB
Posts: 8
Joined: Tue Jun 04, 2013 7:27 pm

Re: Right of Way advice

Post by DFB » Sun Oct 14, 2018 5:57 pm

Thank you - I will let him know :)

IdefixUK
Posts: 573
Joined: Mon Jan 01, 2018 12:07 pm
Number of topics per page: 25

Re: Right of Way advice

Post by IdefixUK » Sun Oct 14, 2018 9:09 pm

Hello DFB.
The Bailii website has details of the December 10th 2009 case of Davill v Pull and Sanderson.(EWCA Civ 1309) . You might find it an interesting read. It would be useful for readers to know the exact wording of the easement which exists across your neighbour's land.

Regards

jonahinoz
Posts: 1547
Joined: Fri Aug 05, 2011 5:15 pm

Re: Right of Way advice

Post by jonahinoz » Tue Oct 16, 2018 8:49 am

Hi DFB

The servient owner (your friend) is not required to maintain this Easement/ROW. The dominant owner is not entitled to inprove the Easement/ROW.

The present easement/ROW is for the benefit of the occupiers of the old allotments, and I would assume that the same easement/ROW would apply to future occupiers of houses built on on the allotment field. But it would there would be no ROW for anybody other than those occupiers .... the ROW would not be PUBLIC.

I suspect that the LA would not accept it as a Public Right Of Way unless it conformed to their standards. Are the LA responsible for maintaining a PROW?

I would have several concerns ...

Is the width of the existing easement/ROW specified on the deeds/Land Register? Or can the Developer decide how wide it is?

Is the ROW limited to "On Foot"? Or can it be considered a ROW for builder's trucks and plant, teenagers (and younger) on motorcycles, etc? (OT, a vehicle on land accessible to the general public must have a V5, number plates and third party insurance).

An Easement/ROW give the dominant owner the right to pass and repass. It does not give them the right to loiter.

Does dog fouling legislation cover PROWs?

Me? I would consider offering to sell this strip of land to the developer. I choose the width. I retain an easement to use it, inclding with vehicles, over it's full length. The developer fences my boundary to my satisfaction, and I retain ownership of the fence (so I can install a gate at a later time, should I wish). If the developer is erecting street lamps, a couple more shouldn't bother him. Maybe the developer will stump up for a couple of CCTV cameras.

Have either your servient property, or the dominant allotments, been subject to a lease, and if so does that throw a spanner into somebody's works? I assume that the allotments were rented, probably from the LA? Does that affect anything?

John W

Collaborate
Posts: 1776
Joined: Mon Feb 23, 2015 9:17 am
Number of Posts per Page: 20
Number of topics per page: 20

Re: Right of Way advice

Post by Collaborate » Tue Oct 16, 2018 9:02 am

jonahinoz wrote:
Tue Oct 16, 2018 8:49 am
Hi DFB


The present easement/ROW is for the benefit of the occupiers of the old allotments, and I would assume that the same easement/ROW would apply to future occupiers of houses built on on the allotment field. But it would there would be no ROW for anybody other than those occupiers .... the ROW would not be PUBLIC.

Just an observation. The ROW is to benefit the land, so not only do the occupiers of the land have a ROW but also visitors to that land.

The ROW cannot be used by people to access land that doesn't benefit from a ROW.

jonahinoz
Posts: 1547
Joined: Fri Aug 05, 2011 5:15 pm

Re: Right of Way advice

Post by jonahinoz » Thu Oct 18, 2018 4:55 pm

Hi Collaborate,

Surely the visitors need some sort of authority to claim an easement to visit allotment, or the houses built on the allotments ??? They would have no rights to use the easement as a short cut to somewhere on the other side of the allotments.

I'd suggest that a quick settlement, and purchase of the easement could be an advantage to both parties, with DFB getting an identifiable border, agreed by both sides, perhaps with some agreement on how it will be used, EG, Kissing gates at both ends, and a "doggy do" bin at both ends too ... emptied by the council. Perhaps DFB could negotiate rear vehicle accesss of the estate roads, if he so wished. You can never have enough off-street parking.

John W

Post Reply