Our building work, rights of way and neighbours

Building16
Posts: 10
Joined: Sun May 05, 2019 6:30 pm

Our building work, rights of way and neighbours

Post by Building16 » Sun May 05, 2019 8:00 pm

After spending some time here I think I understand the position but would be interested to see if there are any unexpected comments.

Us and our neighbours live at the end of a single carriageway track. The track runs through a woodland which is owned by the National Trust. The track then carries onto across our land to the neighbours house.

So neighbours and ourselves have a ROW over the woodland track. Neighbours have a ROW over the track on our land.

We are demolishing and rebuilding our house.

There are two issues here:

Maintenance of the track during and following the building works

Access along the track while the works are carried out.

Maintenance - The National Trust wants us to sign something saying we will repair the track whenever they want during the build to whatever the standard they want. I see absolutely no reason to agree to this.

Our right of way covers all traffic for any purpose. I will fish out the wording and post below but I am confident we have the right to take our construction traffic over it.

In reality we will want to keep the ROW passable and will likely pay for all of this rather than splitting with the neighbour but I see no reason why the National Trust should have final say over how often it is done. They have said they only need 4x4 access. There is nothing along the track other than our two houses. I also note they rejected the previous owner of our houses offer to tarmac the track, but this does mean it is more at risk of erosion due to traffic. I know the neighbours have been phoning NT, so suspect this may actually be due to their comments.

Access - due to the steeply sloping nature of the site, there will be times when we need to temporarily block the track to unload or load and the neighbours access will be blocked. Realistically there are likely to be days when this is basically solid for 6 hours (e.g. concrete pouring, taking away demolition material). We will of course warn them as far as possible in advance, and make arrangements for their car to be as accessible as possible, e.g. parked on our land or end of the track. Is there anything else we should do?

We want to be reasonable and try and minimise inconvenience for everyone. However we also want to be clear about boundaries as to what is too much to ask. We have already had a requests for additional work/complaints and the works haven't even started yet.

Building16
Posts: 10
Joined: Sun May 05, 2019 6:30 pm

Re: Our building work, rights of way and neighbours

Post by Building16 » Sun May 05, 2019 8:01 pm

Together with the full and free and uninterrupted right of way for the purchaser and his successors in title in common with the owner and occupiers of adjoining properties their tenants guests and servants and all other persons authorised by them at all times thereafter and for all purposes connected with the use and occupation of the premises thereby first assured
But not further or otherwise with or without horses or other animals carts carriages motors or wagons mechanically propelled or not and laden or unladen to go and return over and along the private and new road and way leading into the said main road from X to Y

ukmicky
Posts: 4954
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: Our building work, rights of way and neighbours

Post by ukmicky » Mon May 06, 2019 5:23 pm

Planning permission should be refused for development resulting in the loss or deterioration of irreplaceable habitats, including ancient woodland and the loss of aged or veteran trees found outside ancient woodland, unless the need for, and benefits of, the development in that location clearly outweigh the loss.
This affects you IF the woodland you drive through comes under the national planning framework above.

The national trust also have a duty to protect the woodland and erosion caused by works traffic could seriously harm the trees and habitat in the woodland.

They also own the land and there are situations where ownership trumps easement rights and you have no right to harm it beyond what is reasonable.So they do have a big say in regards to what your vehicles do to the land whilst building works are happening.

Your vehicles will also probably cause damage beyond the confines of the track if you are taking concrete mixers and pumps along it so I’m not surprised they are being careful.

In theory if you were to fail to keep the track in good order whilst the building works were happening they could gain an injunction halting all works. As this is the national trust the chances are they will take such action if required. Your neighbours also have a right to expect it to be kept in a reasonable condition . You need to come to an agreement with your neighbours and the national trust.

You need to agree to something. I would say an agreement to repair the track back to a condition and standard it was in before the works started at there request ,should they inspect it would be fair as it’s there land. The national trust are very rich and have access to all the best lawyers so don’t take them on ,come to an agreement instead. You should maybe also agree to monthly or fortnightly meetings so it can be inspected together.


As for you blocking the track for 6 hours at a time, that would very easily be deemed unreasonable . Find another way around it, you need to as you have not right to do it.

Maybe offer compensation to the neighbours
Any information provided is not legal advice and you are advised to gain a professional opinion

Building16
Posts: 10
Joined: Sun May 05, 2019 6:30 pm

Re: Our building work, rights of way and neighbours

Post by Building16 » Tue May 07, 2019 10:14 am

Thanks for replying. It has given me something to think about.

The track is already wide enough for the construction traffic. We have bin lorries/deliveries up it as it stands. So really it is just an increase in frequency/weight We already have a tree protection plan agreed by planning and our builders - nothing should be left in the wood at all.

We would be happy to pay to protect the track in some way, e.g. tarmacing but obviously can't do this unilaterally and the National Trust have already rejected this.

Obviously we will need to keep the track passable for vehicles to do the construction! As well as for the neighbours. And we will pay/do the work ourselves, subject to National Trust approval, although the neighbours will also be using the track.

However, I am not willing to sign up to an open ended arrangement, with the National Trust asking for money whenever the feel like it. I also have concerns that the neighbours deliberately or accidentally damages the track and we would be liable unless we could prove it. Meditation/lawyers getting involved isn't the end of the world. I almost appointed one in advance.

I can imagine the neighbors would be pretty fed up of the National Trust did stop the works! They want it finished asap so they can sell.

We cannot place the lorries anywhere else on site as it would be unsafe, due to the way the hill has been cut out 100 years ago, anywhere else would run the risk of the hillside collapsing. We may be able to divert the neighbors car, as it is much lighter on hardstanding around so I will investigate that with builders. Then we can give the neighbors more options at least.

Just to be clear we are not blocking all Access to their house for 6 hours! And this will probably be for 3 days only. Then much smaller amounts of time on other days. Pedestrian access is retained at all times. And their car would be an additional 1 minute or 10 minute walk from their house. Obviously the scale of the is larger due to the rebuild. But really for us to do any improvement work to a house on the site, e.g. new windows, roofetc the track needs to be blocked for loading and unloading.

Anyway, off to call the builders to discuss options now.

pilman
Posts: 2995
Joined: Thu Mar 11, 2010 4:08 pm

Re: Our building work, rights of way and neighbours

Post by pilman » Tue May 07, 2019 4:56 pm

The National Trust wants us to sign something saying we will repair the track whenever they want during the build to whatever the standard they want.
Just to confirm how the common law deals with the maintenance of a right of way as set out in the case of Carter v Cole.
Carter v. Cole (2006) - Court of Appeal

The Law apart from clause 3.2 of the Transfer
Unsurprisingly the law about construction and repair of rights of way granted as easements has been settled for some centuries.
The following propositions (all of which, in principle, are subject to any contrary agreement) were not controversial:-
(1) A grantor of a right of way ("the servient owner") is under no obligation to construct the way;

(2) The grantee may enter the grantor's land for the purpose of making the grant of the right of way effective viz to construct a way which is suitable for the right granted to him ("the dominant owner"); see Newcomen v Coulson (1887) 5 ChD 133, 143 per Jessel MR;

(3) Once the way exists, the servient owner is under no obligation to maintain or repair it, see Pomfret v Ricroft (1669) 1 Wms. Saunders (1871 ed) 557 per Twysden J, Taylor v Whitehead (1781) 2 Doug KB 745 and Jones v Pritchard [1908] 1 Ch 630, 637, per Parker J;

(4) Similarly, the dominant owner has no obligation to maintain or repair the way, see Duncan v Louch (1845) 6 QB 904;

(5) The servient owner (who owns the land over which the way passes) can maintain and repair the way, if he chooses;

(6) The dominant owner (in whose interest it is that the way be kept in good repair) is entitled to maintain and repair the way and, if he wants the way to be kept in repair, must himself bear the cost: Taylor v Whitehead (1781) 2 Doug KB, per Lord Mansfield.
He has a right to enter the servient owner's land for the purpose but only to do necessary work in a reasonable manner, see Liford's Case (1614) 11 Co Rep 46b, 52a (citing a case in the reign of Edward IV) and Jones v Pritchard [1908] 1 Ch 630, 638 per Parker J.
That part of the judgement confirms that no one can be compelled to repair it.

The servient land-owner with the burden of a right of way over its land can carry out repairs, but must do so at its own cost, unless there is a contractual legal obligation that the servient land-owners with the benefit of a right of way have to pay a contribution to the amount spent on repairs.

As for the National Trust refusing to allow the servient land-owner to create a tarmac road, there is another legal authority that stated that this was a right ancillary to the grant of a right of way.
In Newcomen v Coulson by an award under an Inclosure Act allottees were given a right of way on foot and on horseback and with their carts and carriages and with horses, oxen and cattle, doing as little damage to the soil or the corn, grass or herbage as may be. The award expressly contemplated that the allottees might "street out" the way, and in such event a particular width was specified. Pursuant to the award, a road of the specified width was made. The Defendants, who owned part of an allotment, commenced forming a solid granite road in place of the previous cart road. The Plaintiff lord of the manor sought to restrain the improvement of the road and the erection of the bridge. Malins V.-C. refused the application saying (at p. 140):
"I mean [the Defendants] to have the fullest right of metalling the road and making it the best road they can to meet the circumstances."

• This court dismissed the Plaintiff's appeal. Sir George Jessel M.R. (with whom James L.J. agreed) said at pp. 143-4:
"Then it was said, admitting the owner of each house to have a right of way, still the grantees have no right to enter upon the allotments over which the right of way is granted for the purpose of laying down a metalled road. Now it was conceded to be the principle of law that the grantee of a right of way has a right to enter upon the land of the grantor over which the way extends for the purpose of making the grant effective, that is, to enable him to exercise the right granted to him. That includes not only keeping the road in repair but the right of making a road. If you grant to me over a field a right of carriage-way to my house, I may enter upon your field and make over it a carriage-way sufficient to support the ordinary traffic of a carriage-way, otherwise the grant is of no use to me, because my carriage would sink up to the naves of the wheels in a week or two of wet weather. It cannot be contended that the word "repair" in such a case is limited to making good the defects in the original soil by subsidence or washing away, it must include the right of making the road such that it can be used for the purpose for which it is granted. Therefore I think the Defendants have a right to make an effective carriage-way going, as they are going, by the shortest route, and not interfering with the land to a greater extent in width that the width of the street pointed out by the deed itself."
The other point raised is will the use of large vehicles that need to remain on the road while a cargo is unloaded or loaded be a substantial obstruction to the neighbour's right of way.

It would certainly be sensible if a method can be agreed on so that the neighbour's can access their property at all times.
If there is to be demolition of an existing house can the solid material be used to increase the width of the right of way using part of the land owned by the house builder. Even if this is just a temporary solution that can be rectified after building work is completed.

There has to be a "substantial obstruction of a right of way" for legal action to be successful, so a temporary obstruction during a delivery of materials might not meet the standard as required by law for an injunction to be granted.

It will certainly be best to try and agree a solution with the neighbour, although I cannot agree with an earlier posting that the National Trust would have a right to seek an injunction because heavy lorries were temporarily using the track.
Especially if you made it clear to National Trust that you will reinstate the track to a standard that will allow vehicular access at all times after construction of the new house is completed. That road can then be suitable "to support the ordinary traffic of a carriage-way" as stated by Sir George Jessel, who was the Master of the Rolls, one of the most senior judges in the English legal hierarchy.

Building16
Posts: 10
Joined: Sun May 05, 2019 6:30 pm

Re: Our building work, rights of way and neighbours

Post by Building16 » Tue May 07, 2019 8:14 pm

Thanks for another useful reply. I will respond in two bits.

It is probably useful to note that all the property is on a chalk hillside.

I will start by dealing with the obstruction to the neighbour.

The track on our property passes from the NT woodland to the neighbours property in a straight line. On the right hand side is a line of trees. These are trees owned by the NT, and protected by all the designations that protect the wood (AONB, SSSI). So we can't do anything on that side. On the left hand side the hillside slopes steeply downwards.

We do have a garage on the left hand side immediately as you enter the track. However, it is too close to the track to enable a lorry to turn onto, although fine for cars. We will offer for the neighbours to leave the car there.

After the garage, the land slopes reasonable steeply from the track on the LHS, until it reaches the 'cliff edge' where the hillside has been cut back by the Edwardians to make the plateau for the house. At the moment, there is no formal retaining on this cliff edge.

The issue is, that based on the soil samples,and the angle of repose of the chalk and the placing of the bottom of the cliff, once you go off the track, technically you are on unstable ground. I am not worried about walking across it, but sticking a lorry on it is a total different matter. Not to mention the sideways slope which would also make a lorry unstable. Theoretically we could try and create something but it is still likely to technically be unstable so wouldn't get through the structural engineer. And then it would seem very risky to offer that to the neighbour.

We are putting in proper retaining as part of these groundworks, so the issue of blocking the track should go/be much reduced for the actual build part.

We are actually closing a lane on the main road for other works on the build. Obviously we have had lots of permits and advertising etc for that. Are you aware of anything similar for private roads we could follow?

Building16
Posts: 10
Joined: Sun May 05, 2019 6:30 pm

Re: Our building work, rights of way and neighbours

Post by Building16 » Tue May 07, 2019 8:27 pm

Second bit of the reply regarding the National Trust.

It was my impression from the other things I read here that have been written here that they couldn't make us legally liable for repairs. As I said before, it reality, we will need to keep the track passable for ourselves and because we don't want to inconvenience anyone unless we need to.

It is also interesting that theoretically we could be allowed to improve the track. I should note that as the track is on chalk it doesn't get too muddy or degrade as quickly as something on say, clay might. I could see it also getting complicated, e.g can they insist on a porous solution that is more expensive. And then Natural England would probably probably have a view as it is a SSSI. Really, we want to keep on good terms so this is something to consider and potentially raise further down the line I think.

We have been through a pretty long planning process, including tree protection and construction management plan. Natural England have been consulted and the National Trust could have raised concerns at a number of points but haven't done so. We are also providing them with info on start dates/type of work etc to be helpful which I guess technically we don't have to do.

Having some cases to quote will certainly make me feel more confident in our discussions thigh!
.

stufe35
Posts: 821
Joined: Mon Nov 05, 2012 3:06 pm

Re: Our building work, rights of way and neighbours

Post by stufe35 » Tue May 07, 2019 10:47 pm

Regarding your right to improve. You need to understand the difference between the case pilman had quoted where a new road was formed as part of the easement, hence no definition of the road type or surface at the time of the grant. Your easement appears to be over a track that was already in existennce. What was there at the time of the grant defines the standard and normally no improvement is allowed by dominant owners without agreement of all concerned. There are always exceptions....I believe there is a case where British rail improved a right of way by tarmacing it (which was challenged by the servient owner) and succeeded in keeping the tarmac due to it being seen as reasonably necessary to suit their duty of care to the needs of passengers.

As regards blocking the track with wagons, you need to consider what is reasonable. On any narrow road people have to occasionally wait while large vehicles make deliveries, what would you consider reasonable ? You'd be pretty annoyed if a wagon driver made you wait ten minutes. My view is you bought a house with limited land and limited access. If you chose to do work to it you have no right to inconvenience your neighbour's beyond what is reasonable. You need to use working methods which do not block the track or go cap in hand to them.

I am with pilman on the national trust; travelling along your right of way which happens to belong to them is your business so long as it is within the terms of the grant ( and it appears it is) . No extra or auxiliary agreement is necessary for your proposed works.

ukmicky
Posts: 4954
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: Our building work, rights of way and neighbours

Post by ukmicky » Wed May 08, 2019 12:43 am

There are differing views on this one so be careful
It was my impression from the other things I read here that have been written here that they couldn't make us legally liable for repairs. As I said before, it reality, we will need to keep the track passable for ourselves and because we don't want to inconvenience anyone unless we need to.
It’s depends on what you do to it and how that damage occurred because everything has limits and your right of use only allows for reasonable damage to occur through the normal everyday use of the ROW under what was contemplated when the easement was granted . You do not have a carte blanche to treat the servant owners land in any way you wish even if you have a right to cross it and there is a legal term called excessive use where an easements use goes beyond that which was envisaged at the time of grant. . A court would ask itself was or is your use and treatment of the track reasonable. Has your change of use even though its only temporary become excessive due to what your vehicles were doing to the track and if so temporary use can be halted and you could yes be made to repair or pay damages as your use would have gone beyond the scope of the easement .



Also statute law overrides common law and therefore can override any ancillaries right you have under common law granted to you due to your easement. So if your works traffic is detrimental to the woodland and the woodland is protected by natural England they can use laws if your use causes damage to the woodland to stop you and take you to court over the damage . Therefore give them as much as you can to keep them on side. You having to repair it to any standard they decide is not something I would agree to too also and I would get them to change it to so you only have to make good to the standard that was previously there. In the end you cant go ahead without agreement so you need to talk and hopefully come to a compromise.



Also not getting into the argument if you have the right to tarmac as I have my beliefs which are not the same as Pilmans on this one but to alter a private way ,excavate and lay tarmac through woodland would require planning permission or at least an application for prior approval. They would most likely be object to your application and would most likely use the national planning framework I posted before .

Even if you had an expressly granted easement and it contained in the wording there was the right to lay tarmac , statute law and the protection of the trees and woodland along the track would if need be override the granted right allowing you to tarmac.
Any information provided is not legal advice and you are advised to gain a professional opinion

Building16
Posts: 10
Joined: Sun May 05, 2019 6:30 pm

Re: Our building work, rights of way and neighbours

Post by Building16 » Wed May 08, 2019 10:19 am

Ideally we would agree something with the NT but it is not clear to me that we have to. We don't need anything from other than to not block the ROW.

We need to speak to them again and see how it goes. My suspicion is that they have actually included the clause to keep the neighbors happy. It has been written by a fairly junior person with no evidence of lawyers at this stage. Reinstatement would definitely be a better way of phrasing it.

Obviously if a truck comes off the row and crashes into a tree that is damage and would be dealt with via the builders insurers. But to me, some increase in potholes/surface erosion would not be deliberate damage, given the row wording and track surface. This happens with car/van/truck traffic currently but will obviously increase with the construction traffic. But the neighbors vehicles will also continue to contribute to this.

The track was created when the plot of land was bought to build our house. At this time, the builders of our house owned the woodland and the neighbors land. About 30 years later, they sold the land for the neighbors house to be built and gifted the wood to the NT and established the row. I had an interesting trip to the local history centre so saw the original documents. So two houses have been constructed along that track previously, although I am not sure if the second one was after the NT gift or not. I would
Have to check.

I can't see the neighbors seeking an injunction. They want the work done and don't like having an empty house next door. Damages maybe. It sounds like offering cash might be a possibility but I would want some independent advice on this first or I can see it getting silly.

As for how I would feel if it was the other way round, the answer is understanding! Our previous house was next to a building site. The houses started 1m from our side wall. What we wanted was reasonable notice, reduction of inconvenience where financially reasonable. We had scaffolding on our land for 6 months. It was all fine. We are trying to give them the same notice/consideration the other way, in fact far more than we got. But I don't agree that all development should be stopped if there is some minor inconvenience for the neighbours.

Yes, we knew the track would be tricky, but so did they. They bought next to a house that was in a poor state of repair, which had had a formal dispute with the neighbors (previous owners of their and our property). The track gets blocked for all sorts of reasons, trees, snow and ice, maintenance, particularly there are incoming services under it. This work when done will also improve their house price.

This conversation is very useful for me! Thanks for all your input.

arborlad
Posts: 8340
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: Our building work, rights of way and neighbours

Post by arborlad » Wed May 08, 2019 12:33 pm

Building16 wrote:
Sun May 05, 2019 8:00 pm
I also note they rejected the previous owner of our houses offer to tarmac the track,what is too much to ask.



Could the tarmacing process itself be the issue here?
arborlad

smile...it confuses people

Building16
Posts: 10
Joined: Sun May 05, 2019 6:30 pm

Re: Our building work, rights of way and neighbours

Post by Building16 » Wed May 08, 2019 12:47 pm

Possibly. I don't have all the details - although the NT person confirmed it had happened. At this point I don't think discussing it with them is going to help matters and would just make them more nervous about the track.

Got a few meeting and discussions later on today so we shall see how they go.

ukmicky
Posts: 4954
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: Our building work, rights of way and neighbours

Post by ukmicky » Wed May 08, 2019 11:31 pm

Sorry but in regards to your neighbours , blocking the ROW for 6 hours at a time is not reasonable and you have no right to do so. It’s possible a court could deem just on occasion as being substantial obstruction because in reality being prevented from gaining access to your house or be prevented from leaving it for 6 hours would to an average person be substantial interference
Any information provided is not legal advice and you are advised to gain a professional opinion

stufe35
Posts: 821
Joined: Mon Nov 05, 2012 3:06 pm

Re: Our building work, rights of way and neighbours

Post by stufe35 » Thu May 09, 2019 9:19 am

Building16 wrote:
Wed May 08, 2019 10:19 am

They bought next to a house that was in a poor state of repair,
The key point is not that they bought a house next door to a house in a poor state of repair. The key point is that you own a proprety burdened with a right of way running through it; that burden is on you not them.

The default position is that you need to engage methods for receiving deliveries and carrying out works that maintain access to their property 24/7 or face potential legal action which would more than likely be successful. If you wish to block their right of way for unreasonable periods of time to save you money on your working methods then you need to engage with them and seek their agreement. (or of course take a risk on the legal action occurring)

If they and you are reasonable people im sure you will be able to work something out.

Clifford Pope
Posts: 440
Joined: Tue Aug 25, 2009 1:18 pm

Re: Our building work, rights of way and neighbours

Post by Clifford Pope » Thu May 09, 2019 10:16 am

The standard procedure near us when forestry contractors need to block narrow roads in order to extract and load timber is to build a temporary lay-by or small diversion road nearby, obviously by agreement with the landowner, where they park their lorries off the road, and then to reinstate the field after the forestry work is complete.

Post Reply