Proposed Access via a shared private drive

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  • Proposed Access via a shared private drive


    Apologies if this has been covered before but I am looking for advice over a particular situation.

    We have just purchased a house that was access via a private drive - ownership of the drive is split 3 ways, with shared ownership and responsibility as shown on the deeds - ownership split 3 ways - a third each to the 2 properties accessed via the private drive and a 3rd by the land owner of the adjacent field.

    The landowner of the field, has now applied for planning permission (2 sets in fact) - one for 14 houses in the adjacent filed that would require a change in the layout of the private drive and one for a revised 3 house application that would be on a smaller section of the land and utilise the existing access via the current private drive instead. Both versions of the application have been rejected on numerous grounds by the planning department.

    However, an appeal is in process for the 3 House application......the question is, where do the 2 existing house owners stand legally in regards to granting access and right of way up the private drive if in the unlikely scenario of the application being granted. The land owner proposing the build doesn't own all the land he is proposing to use for access to the new properties......can the other owners - ie ourselves and our neighbor reject access and use by other parties?

  • #2
    The original deed of grant that was for the benefit of the farmer's field may provide an answer to the question.

    Even though the farmer does not own all of the land that comprises the only access to his field, he has a right of way over it.

    That right of way is an easement that is a Legal Interest over land, which is one of the two property rights recognised by the Law of Property Act 1925.

    You own a Legal Estate in Land, but that land is burdened by the Legal Interest over land, which is owned by the farmer along with his ownership of the Legal Estate in the physical property comprising the field.

    Neither you, nor the other road owner can prevent lawful use of the right of way.

    The answer to your question as to whether a development of additional houses will allow the farmer to continue using the right of way to access those houses depends on how the right was originally worded.

    You will need to find the original deed that explained how this right of way was to be used.

    In the event that both houses were built on land sold off by the farmer, the right of way may have been reserved in the conveyances prepared when the house plots were sold off.
    That is likely to mean the farmer's property has all rights of way needed for any future development of the farm-land.

    If the right of way was granted to the farmer then that is more likely to impose restrictions on the future use of the farm-land.

    The phrase "At all times and for all purposes" would probably allow such use.
    The phrase "At all times and for all purposes in connection with the use of the property as an agricultural holding" would probably not allow such use.

    Does that make sense?


    • #3
      As a proposal - and it is dependant on how the current road is arranged - why not 'give up' the road to the local Highways. It can then be a Planning condition to construct the road to Highways standards? It then becomes adopted and maintained.
      There is always scope for misinterpretation.

      If my posts can be interpreted in two ways, one that makes you feel angry and one that doesn't, I meant the latter.

      Everyday is an opportunity to learn something new.


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