Neighbour granted permission to build on our ROW

Butterfliesandbees
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Joined: Thu Jul 18, 2019 9:04 pm

Neighbour granted permission to build on our ROW

Post by Butterfliesandbees »

Hi all

I have sat quietly in the background reading thread after thread to get advice and knowledge on this subject. I used advice from this forum to object to my neighbours planning application and felt confident that I would be successful having quoted relevant legal victories and subject matter. However, I am now staring down the barrel of a gun having found out my neighbour has been granted planning permission to build over my right of way. Here is the back story... … thank you for reading.

I live in a semi detached cottage which enjoys right of way over our neighbours land in the form of an L-shape. The first part is 10m in length and 2.5m in width from the road to the rear of his house, and 8m in width and 3.8m in length across the back of his house (upside down L-shape). The previous owner built on top of the right of way by building an extra bedroom on top of pillars. To access the back of the property you walk under his side extension. We've done this without issue for the 5 years we've owned our house.

Prior to our purchase of this house in 2014 we carefully checked and were satisfied with the conveyance. The previous owner of our house successfully got an injunction in 2001 against the previous neighbour after he built a wall across said right of way leaving access via a 90cm gate. The court instructed the previous neighbour to immediately remove said wall and instructed that the ROW was never to be obstructed at any time by him or future owners and awarded costs and damages to the previous owner of our house.

The District Judge wrote the right of way is "for the full length and the full width, at all times and for all purposes for the current and future owners of mentioned property and their predecessors" etc etc. The previous owner of our house kindly gave us copies of the court order and all communication between him and the solicitor. Our conveyance/deeds is ancient but was amended in 1953 after a neighbouring house was knocked down and re-built and their right was subsequently removed by mutual agreement. The amendment was removing the other neighbour from the right and a tap that previously existed. The right of way we enjoy was for horse drawn carriages to draw water at the back of a former pub. Horse and cart and later on, motor vehicles, also used it to deliver coal to the back of our house. Something that still happened as recently as 2013 by the previous owner. This element was important as it gave the Judge grounds to enforce the length and more importantly the width of the right of way, something the previous and current neighbour dispute.

In May this year the current neighbour/owner (fully aware of the ROW as the court case happened whilst he was purchasing the house), mentioned to us he wished to add a "small extension" to the rear of his house and in return would square off some land/boundary to allow us to extend in the future. We politely told him we had no intention of moving/giving up right of way under the advice of the previous owner and also had no intention to extend for the foreseeable future. We also said if we did extend, it is dependent on a planners decision, so wether he gave us a strip of land or not was irrelevant and gave no bearing to the success of a future application. It felt like he was trying to bribe us and dangle a carrot on a stick. Our house is small and an extension would be helpful but now is not the time nor do we have the funds.

In June this year we spoke to an estate agent who said our house would be worth less without rear access and potentially unsellable without a huge reduction should we extinguish or reduce our right of way. They also said our neighbours house would be worth significantly more if he got his extension granted at the expense of our access. My husband called our mortgage lender who advised us not to extinguish, reduce or even move the right of way and that it was their asset to protect etc. When we relayed this to our neighbour he asked if he could "speak to our lender" to persuade them otherwise!?! He said he "doesn't like" us walking past his kitchen window or his front door. I don't particularly like it either but its my only access for bins, bikes, dog, buggy, wood delivery for our log burner etc. He wants us to pity him. A few weeks pass.

He then emailed us in July of this year asking us to GIVE UP our right of way and as a "gesture" he would pay for the fees etc associated. We email back, again reiterating our position. Heard nothing for a few months until I looked out the window to see a planning officer is selotaping a notice to our lamppost. I explained to her about the ROW and she completely dismissed me and told me it was a civil matter. I explained we would be left with a 60cm width access instead of 380cm/3.8m. She said "well its wide enough to walk through" and couldn't understand what my problem was.

I spent days scouring this site getting advice, references to laws and legal cases of Joe Bloggs vs Jane Bloggs etc. I felt quite confident they would reject it if they knew the extent of the ROW and that we were prepared to fight it.

Fast forward to now/today, he has been granted planning permission to build on the right of way. He has offered to knock down an outbuilding "so the right of way can be moved" but he has to knock it down anyway or his extension would butt up against it. Even if he knocked it down, we are not left with the same previously enjoyed width/length. Worryingly, the planner told me the applicant doesn't even have to knock the outbuilding down which if that were the case, would leave us with 60cm access width instead of 3.8m.

The granted extension in question is in two parts. A ground floor single story kitchen extension at the rear of his house. And then a second story extension on pillars (extending what he already has) in effect a portacabin on pillars. Separate to the right of way issue, it will block our light, encroach on our garden, invade our privacy and cast immense shade but the planner disregarded all of that.

The proposed moved right of way (providing he knocks down his outbuilding) would be 2.5m in length instead of 3.8m. If he doesn't knock it down it will be 60cm in length. Both options are less that what we currently enjoy and was enforced by a District Judge at the County Court. His proposal is fencing and a gate. We currently have a very wide waist height metal railing gate across the ROW which was erected with his consent. This was due to his previous tenant having a dog that used to run in and out of our garden. It also prevents our toddler getting onto the main road via the right of way. He tried to say we were inadvertently obstructing our own right of way by means of the gate, but we said we were happy to take it down any time and would just have to be with our child and dog at all times in the garden instead.

He thinks we are being difficult/obstructive by objecting to his plans and he suggested that by building an extension we would have MORE privacy?!? The work includes deep excavations and covering up/moving shared drains which will leave us with no access to the back of our house whilst the work goes on. His estimation is three months of no access and temporary safety fencing erected to protect our dog, toddler and baby from falling into said holes. The disruption and noise will also be immense and is directly underneath our babies bedroom - but I digress.

I really have no idea where to start. As a first point, I emailed the appointed planning officer this evening expressing my disappointment and notifying her I would be making an appeal against the decision and appointing a solicitor. I have no idea what the process is, time or cost. To make matters worse, I am on unpaid maternity leave and my husband is a teacher - meaning we don't have pots of money lying around. He has deep pockets and basically told us to appoint a solicitor.

If any of the above is unclear or you have questions, please do let me know. I really appreciate any advice or pointers you can offer.
ukmicky
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Re: Neighbour granted permission to build on our ROW

Post by ukmicky »

firstly the planning officer will not get involved.

2nd you need to write a dated letter ,sent recorded delivery saying you do not give permission for him to build on the Row . (Keep a copy ) it would be better to get a solicitor to do it for you.

Lastly you may end up gaining an injunction like the previous owner ,so be prepared
Any information provided is not legal advice and you are advised to gain a professional opinion
mr sheen
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Re: Neighbour granted permission to build on our ROW

Post by mr sheen »

The planning department consider planning issues and even ownership of land is not relevant as to whether the land is suitable for development. You are unlikely to get an outcome that protects your right of way via the planning dept.

To protect your ROW you have no choice but to pursue the legal route and realistically an injunction is the only way to stop the development over the ROW and you need it ASAP. once it is built a court is unlikely to require the extension to be demolished, if you win you are likely to be awarded damages for loss/reduction of the ROW and it will be lost.

I would also send a registered letter enclosing the previous injunction asserting my intention to take whatever action is required to protect my rights and since the proposed development will reduce my rights, it is my intention to apply for an injunction as previously awarded to protect the ROW that serves my property and also to seek to recover costs and request punitive damages from the court if the development is started in full knowledge of the previous injunction and that the development would interfere with my rights.
IdefixUK
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Re: Neighbour granted permission to build on our ROW

Post by IdefixUK »

It think it would be worth checking to see if you have legal expences insurance to help pay for the protection of your property interests. You state that your husband is a teacher, this may come with any Union membership he has, or perhaps you have your own.
From what you have posted it would appear that you are on solid legal grounds to insist on the use of the right of way for vehicular use. That would be to use the ROW within the specified widths (are these measurements specified in the deeds?), so, if the neighbour built on a small part of the edge of the ROW this would not necessarily be considered an actionable interference with your rights so long as you could conveniently pass with a vehicle.
Out of interest, when the ROW has been in used for vehicles, have those vehicles entered onto your land. For example to turn around or to make a delivery. Ignoring the kiddy fence and gate, would turning a vehicle on your land be possible?

Regards
MacadamB53
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Re: Neighbour granted permission to build on our ROW

Post by MacadamB53 »

Hi Butterfliesandbees,

I would be making an appeal against the decision and appointing a solicitor

waste of time - this is not a planning matter.

I suggest you follow the guidance set out by ukmicky (make it clear you don’t consent), mr sheen (warn them about the possibility of an injunction) and IdefixUK (check for legal cover).

kind regards, Mac
span
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Re: Neighbour granted permission to build on our ROW

Post by span »

Surely enforcement of the existing injunction is an option also?
FilthWizzard
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Re: Neighbour granted permission to build on our ROW

Post by FilthWizzard »

An injunction should do it, but if you discuss this with them first it would seem likely that they are aware they would understand that a court case would not come out in their favour. It is worth pointing out there is a good chance of costs being awarded if they press ahead with this considering the ROW has already been through court and the decisions are clear.

You could offer to let them move the ROW if it is practical given the layout. If you let them move it to the bottom of the garden instead of directly by their kitchen window (so they can fence it off) it may well reduce tension and avoid future issues if you get new neighbours at some point. Of course, they should pay for the legal process of moving the ROW (solicitor and land registry fees).

If this is not possible, you could offer to sell them the ROW for the loss of value to your property plus a hefty bonus for yourself. If that is a big issue for your property such that you can't or won't go that route, you could offer to sell them the property (going rate plus hefty bonus for yourself plus all legal costs paid, including tax, for your buying of a new property to relocate).

If you don't want to take any of these profitable opportunities, I say talk with them first as I suspect it will avoid the need for court action in this case unless they are very dense. If they are dense, go the injunction route. I suspect you will have legal cover on your home insurance (given the legal case docs you received with the property was a big clue as to the necessity) so use it. If not, a DIY injunction should cost you about £150 looking at the experiences on here and I suspect you would stand a good chance of receiving costs (though don't bet on it).

Can an injunction received by someone else transfer with the property and so be enforced by you? Contact the court that issued it as they would likely be able to let you know this fairly easily. A phone call should be enough to work this out. If it can, that'd save you a lot of bother and would save court time, so I suspect it is possible as it is to the advantage of the courts service to allow this. But I don't know, I am just using logic which is always a bit of a risk when legal matters are concerned...
Paddock
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Re: Neighbour granted permission to build on our ROW

Post by Paddock »

You might have some legal cover through house or mortgage insurance? Did you say the lender wasn't happy with it? Ask them?

Don't ask, Don't get!

Paddock
MacadamB53
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Re: Neighbour granted permission to build on our ROW

Post by MacadamB53 »

Hi FilthWizard,

Can an injunction received by someone else transfer with the property and so be enforced by you?

in this instance I think the answer is “no”, but that phone call is worth making...

kind regards, Mac
pilman
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Re: Neighbour granted permission to build on our ROW

Post by pilman »

This is not a planning matter.

It is purely a legal matter concerning a granted right of way.

That will require urgent legal action to seek an injunction based on the court's earlier declaration as to the extent of the right of way.

You should instruct a solicitor as soon as possible, but not about the planning permission.
Just about seeking an immediate injunction to prevent building work starting.
Butterfliesandbees
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Joined: Thu Jul 18, 2019 9:04 pm

Re: Neighbour granted permission to build on our ROW

Post by Butterfliesandbees »

Thank you all for your replies. You are such a knowledgeable bunch! After lots of discussion, my husband has decided he wants to be neighbourly and is willing to entertain the idea of moving our right of way to allow our neighbour to build his kitchen extension which has taken me by surprise. He has come to this conclusion as via permitted development we could add a small dayroom to the back of our house at single storey height whilst still maintaining the right of way.

However, our neighbour is yet to prove via technical drawings that the same right of way can be offered as to what we currently enjoy. i.e same width and depth. Without that, my husband agrees that we would not proceed.

We recently converted our garage to a dining room and built a bedroom on top of it which is at the side of our house. However, our circumstances have somewhat dramatically changed over the last few weeks as we have found out we are expecting twins. We also have a toddler and a rather large dog. What was supposed to be a small rear extension under permitted development would now need to be an extension as large as our planning office would permit at both 1st floor and ground floor level to accommodate a family that has now doubled and all the associated stuff not to mention a double buggy. :( As a result, we now either face the prospect of selling up and moving to a larger house or subject to planning, extending our current house as described above. To do this it would extinguish our right of way but would give us the space we don't currently enjoy. We have three bedrooms - ours, our daughter and a spare which will house the twins. However a fourth bedroom would be of benefit for family to stay and help us out and to regain our spare room for storage and drying laundry. Our small dining room garage conversion cannot accommodate a table large enough for us all and three (oh my god) THREE highchairs. My tiny kitchen also can't accommodate my current family let alone our future family. Hence the need for a large rear extension and fourth bedroom.

Our neighbour has mentioned in conversation before, that should we wish to sell our home, he would like the opportunity to buy it, we beat him to it when we bought it 5yrs ago as he was living abroad. I imagine if he bought it, he would extinguish or move the right of way? I don't really want to sell our home. We have the biggest garden which is unheard of in our area and our dog makes great use of it. And our growing family will need it in years to come. The views are lovely both front and back and to the other side of our home is a large detached property which is the home of our in laws/my husbands parents. It pains me to build over the right of way as I know there is a value of some negotiable description. I have also read that not everyone has a right of way or cares about a right of way so it might not effect the saleability of our home. When I lived in London for instance, no one had access to their garden - it was all via the front door. I am coming round to the prospect of not having a right of way. A little ace card up our sleeves is the prospect of our other neighbour (the inlaws) redrawing our boundary and gifting us a 1.1m wide alleyway between our houses. Which would be considerably smaller than our current right of way but would be adequate to reach the back of our house, bins, bicycles etc. We have not told the subservient neighbour about this potential workaround for obvious reasons.

So hypothetically, what order would we do this in? Value right of way, apply for planning, get planning (hypothetically), sell him the right of way if he wanted to buy it. change all the deeds and then build our right of way? And if we were to be refused planning, just build the small day room we originally planned to keep our right of way.

I've tried to look online but the information is limited, I can't seem to find a specialist near me and a lot of the information I've come across relates to ransom strips for developers or American articles. Please let me know if you have any questions or if any of the above is unclear. General views on any of the above however harsh and honest would also be appreciated as we both have zero experience in this. Thanks again.

So, how would I go about getting a ROW valued and by whom? Would I need to involve my neighbour as I know calculations are also based on the neighbouring/subservient property?

How do I even make conversation about it? As I mentioned previously, his plans were approved and I don't know if he would look to amend them if we were to sell the ROW to him. To be honest, I wouldn't mind if alongside it, our extension were to be granted. The houses would extend in unison.
IdefixUK
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Re: Neighbour granted permission to build on our ROW

Post by IdefixUK »

I wonder if you have considered swapping houses with your inlaws, it would save a lot of builders' dust.

Regards
cleo5
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Re: Neighbour granted permission to build on our ROW

Post by cleo5 »

But you said you could not afford to extend and you do not really want building work on house at this time.

Best idea is swap with in laws as per Idefix suggestion, if their house is bigger than yours and if they are willing. Have you discussed your present situation with them.?

In laws can then then use the bit of their land between your two houses as a right of way until the neighbour the other side has completed his building work and provided new access right of way....but get any revised row in writing, with measurements .preferably drawn up by his solicitor .
Or sell row to them.


Whichever route you go it is going to cause hassle which you do not want when pregnant let alone expecting twins. So choose the easiest solution.
An injunction will cost from £150 plus solicitors fees.
And even if you have legal fees cover check they will cover neighbour disputes as some do not. And you still have to pay initial solicitors costs.
Butterfliesandbees
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Re: Neighbour granted permission to build on our ROW

Post by Butterfliesandbees »

Thank you both for your replies.

No, my in-laws are not prepared/willing to swap houses as a temporary measure. They too don’t want to live next to our neighbours building site and are rather fond of their huge detached in comparison to our small cottage.


You are right, we previously could not afford to extend but coupled with some equity in our home and a possible loan from the bank of mum and dad it might be possible. My Brother in law is a carpenter which helps reduce costs too.

We’ve done our sums and it would be cheaper to extend our house than to move to a bigger house further away but within our budget. Coupled with having childcare help next door rather than paying for a nursery.

I found a barrister who specialises in ROW but just the initial phone call was quoted at £600+vat. A local “specialist” has terrible reviews online... I’ll keep looking!
IdefixUK
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Re: Neighbour granted permission to build on our ROW

Post by IdefixUK »

Congratulations on your news. I suppose you should keep that particular news "close to your chest"(forgive the pun) as far as the neighbour is concerned as it may influence his position regarding any negotiations between you, should it come to that, in that he would realise that you will be pressed for accommodation.

You mentioned that you might yourselves build over your Right of Way. Surely this is not possible as you do not have or need a ROW across any part of your own land. Perhaps you meant that you might build a wall along the boundary which would effectively mean that (whilst the wall is there) you could not access the ROW from your own land. Were you to do this it might be implied that you have permanently abandoned the existing Right Of Way, and thus you would loose your bargaining power. Take advice on this if you go down this route yet wish to retain the ROW for the future.

Just an idea.
Have you considered building a fair sized garage, such that the garage entrance(with electric roller type of door) opens where the ROW arrives at the boundary to your land. You could perhaps have a hall way to the "rear" of the garage leading to further accommodation deeper into your garden. The hall way could link the existing house with, the garage via an internal door, and then onto another room or two to the rear, and from here you could gain access to the garden though the french windows of your choice. That way you keep the ROW for vehicular use, and you have space for your bins and bikes etc. Cleverly and properly designed it could leave you with the option to build above to add some bedrooms and another bathroom. (I mention the roller door because you would have no rights to put on up and over or conventional doors on the garage as these would be "in the air space" of the neighbour.)

To be honest it would be easier to come up with some ideas for you if you would draw out a schematic plan and post that in this thread.

Regards
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