Developer build on land with easement

KateHunter

Hope this is the right place to ask.

My neighbours and I live in a private close of 32 houses. Half are freehold, half leasehold. The freeholder who owns the freehold to 16 house also owns the freehold to the road (unadopted) and communal gardens.

He has over the passed two years been trying to get approval to build over the part of the road and communal gardens. This is now being sent to a planning committee with the recommendation to approve.

In our deeds (freehold houses) under rights of transfer has the following clause.

The right of way with or without motor vehicles for all purpose in connection with the enjoyment of the property hereby transferred to the transferee and his successors in title to pass over the roadway coloured blue on the plan annexed hereto.

The plan shows the area coloured in blue to be the area the freeholder intends to develop.

I strongly object to this development as the close will become overcrowded.

How do we go about enforcing our right to use the area and not have this developed? I understand anyone can get planning permission even if they do not own the land but how can we protect it?

SmashedAvacado

ON the road: You can threaten an injunction. You should do that.

You may also be able to put a unilateral notice on the title to the land indicating that you have a protected interest - the easement will be clear on the title to the freehold land in any event,.

However, you haven't referenced your rights in relation to the gardens - what does your lease say about those?

KateHunter

Thank you. I will speak to the neighbours about that.

The gardens are also coloured in blue on the plan along with the paths.

SmashedAvacado

This is less helpful. Because in essence you have a right of way over the gardens - not a right to use them as gardens. That's shoddy drafting if the intention was that you had the use of the gardens for leisure.

They might be able to argue that as long as some of the area is available as a means of access, they can build on the rest. It would depend on the exact wording - and i can't give you a professional opinion on here - but its something you should check.

You might get the solicitor who helped you buy your property to clarify presumably on the basis that there seems to have been a bit of a balls up with the rights over the garden...and if there is, you might have a claim against them! If they don't help, ask them to explain why your rights over the gardens appear to rights of way not rights to enjoy the gardens.

KateHunter

The freehold houses in the close all have private gardens, the leasehold side does not so they are rarely used as gardens by us. Also they are directly next to a railway line so not desirable to use as gardens.

SmashedAvacado

ok. so what's the problem with them building on it?

KateHunter

It is five flats which will be built over the road and gardens. It will narrow the road and half of the parking will be lost. Also it will likely make the close feel less open.

davidmcn

KateHunter wrote: »

It is five flats which will be built over the road and gardens. It will narrow the road and half of the parking will be lost. Also it will likely make the close feel less open.

But it doesn't sound like you have a right of parking or to "feel open". You have a right of access, so your ability to challenge the development may only be to the extent that your ability to access your property is hampered.

And as you've already figured out, the rights in your title aren't anything to do with planning. Though you may of course have legitimate planning objections available to you.

KateHunter

Just to demonstrate in a very crudely drawn picture. The area of the easement (blue) h

KateHunter

https://ibb.co/D7PZWw1