property with no right of way over private access road

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    property with no right of way over private access road

    We own a property off a private drive shared by 5 other properties. Our property has half ( lengthwise) the drive on its deeds, the other half is on one of our neighbours. There are specific mentions in our deeds of the requirement to keep the drive free from any obstruction. No such obstruction has happened and we live without bothering or delaying any of our fellow neigbhours.

    One of the properties made a garden grab planning application before we moved here and was successful in obtaining planning the second time around. Many reports were done - highways etc in order to prove the private drive could serve a 6th property when at the time I believe there were limits in law regarding this. The planners asked for the drive to be made wider - i.e the new house lost some of its land to accommodate this - and for an angled pull in for the new house to have a space to wait whilst private gate was opening. None of the houses have a gate besides this one.

    The owner of the house from which the garden grab was taken subsequently sold the old house and moved into the new one. The old house had deeds which reference some covenants but they were never presented at first registration. This meant there was no reference to a right of way or easement. When this older house was sold the owners did a Stat Dec to say they had used the drive for 20 years without issue. This Stat Dec is now with the second subsequent owners.

    Now the newer house has been sold the new owner put in planning for a very large extension and separate 4 car garage with accommodation over. All the houses on the drive objected as the plot is overdeveloped already in comparison to the other houses. All our houses have covenants in place which say plots can be no smaller than 2000square yards.

    The next 5 months have been filled with research from all the present owners and we have discovered the new house was built larger than the planning permission given ( this has been confirmed by the planning department in a report) but that as 10 years have passed they basically don't care. We also discovered that the deeds to the new house are 'silent' with regard to right of way. When we raised this the planner said this was a legal matter not a planning matter. Our response was that why give planning when the council already know we will not allow construction vehicles etc to use or block the drive - which given this is the first house on the drive they will certainly do. To cut a long story short it went to committee because our local MP asked for it to do so and although the new owner scaled down the plans our main concern was that they wanted to move the gates, increase the width of these gates and effectively block the private drive every time they waited for the gates to open. The moved gateway means that other users could be confronted by a stationary vehicle as they turn into the lane from a busy main road. We were afraid this would cause an accident. They also stated that they only had one car - when the plan would have garaging for 6 which we thought to be alarming. The planning committee visited the site and refused based on over development.

    This was a few weeks ago and now we have received a new standard planning form about a new application from the architects but there is no application on the council planning portal.

    My questions are:
    Does this form giving us 21 days to respond to the planners mean they are asking for permission to use the private drive as they now realise they have no right of way?

    If we say no then can they then not apply for planning permission? or could it be they council have not uploaded the application yet given the form was received 4 days ago?

    Is their only option to negotiate with us for an easement and is there a financial guide to the value of this? the house was sold for a third less than it was first advertised at?

    Sorry for the length of this post - I am new to this but having read other posts I see that detail is imperative for sound advice

    #2
    I set out below what I said in another forum. If it does not answer your questions, let us know.

    Planning law is public law. Land law is private law.

    Public law deals with the relationship between the individual and government, whether local or national.

    Private law deals with the relationship between individuals.

    Planning law is concerned with the control of development.

    Land law is concerned with the rights that individuals have in land.

    Planning law and land law operate without regard to each other.

    Planning permission is required for many types of development that involve building (including alterations) or changing the use of land. If you obtain planning permission it means that the planning authority are satisfied that you have met certain criteria. It is a common misconception that if you have planning permission you can carry it out willy-nilly. Planning permision should be thought of as simply confirmation that the planning authority has no objection to what you want to do. Planning authorites are not concerned with private rights - this would make the planning process too complicated - they are only concerned with planning considerations.

    If you have planning permission to build over a right of way, this does not give you permission to obstruct the way.

    If you have planning permission to erect a building that will obstruct the light to a window that has a right of light, this does not give you permission to cut off the light to the window.

    If you obtain planning permission that can only be implemented by going onto your neighbour's land this does not give you permission to go on your neighbour's land.

    If you have planning permission to carry out works that need a Party Wall Etc. Act notice to be served, the notice must be served.

    If you get planning permision to build on land that is subject to an enforceable restrictive covenant against building, this does not waive the covenant.

    If you obtain planning permission to change the use of your land you must still comply with any enforceable covenants relating to use that affect the land.

    If you obtain planning permission to build on your neighbour's land this does not give you permission to build on your neighbour's land.

    Comment


      #3
      Thanks for the response.

      This notice is different to the one we received at the start of the initial application - indeed we did not receive any until we alerted the planners that the drive was private land. We just wondered, given that no application is on the planning portal as yet, whether there was a requirement to obtain our permission beforehand? The agent has written and told us "this is a notice under Article 14 ( which I think should read 13) required when applying for planning permission as our client's development requires access along a lane which we understand is in shared private ownership"

      The applicant has changed from the previous owner to the architects. The new owner who acquired the property 6 months ago is not named though we have pulled the Title Deed from the Gov web site so we know his name and the price paid. When I queried the fact that the previous owner was the applicant the consultant/architects said anyone can apply - which I agreed they can but as a landlord myself I have never put in planning AFTER I sell a property. Is this not odd? or just a ploy so the new owner does not declare himself as the applicant?

      Comment


        #4
        Anyone can apply for planning permission. If you are not the owner of the land to which the application refers you have to say and appropriate notices need to be served. The landowner's consent is not required nor can a landowner object to an application being made in respect of his land. In practice (cases where the applicant is hoping to encroach excepted ) few people apply to develop land unless they or a client own it or are negotiating to own it.

        A landowner has the power to stop trespass on his land to prevent development even if planning permssion allows it.

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