Shared Access Dispute/Land Registry

georgiab432

Hello,

I am desperately seeking help. My mother and father own a semi-detached house with a gated shared driveway leading to theirs and their neighbours garages and side access to their gardens. Our neighbour has decided he wants to carve up his house and make it into three flats with the main entrance being through the shared gates and driveway at the side of his house.

Our concerns are that nowhere in the planning permission did he state it is a shared driveway with shared access to each house's garage and gardens, nor does he state that the driveway is used by us to drive to our garage, through a very narrow way-through. This means that should someone wish to access their front door it would be impossible and could be very dangerous if they were exiting whilst we are driving through. We sort professional planning advise submitted quite a few valid and relevant objections, but we have just been advised by the council today that they have granted permission.

We need advise as to where to turn to now as the deeds to the house state;
"the said garage way is to be used for the use only of one private motor vehicle car for each house and no parking of any vehicle or article whatsoever is to be allowed on the garage way. This covenant shall run with the land". The neighbour is completely changing access making it for pedestrians and a main access entrance and main access to the flats gardens. He also stated that his garage will be turned into a bike and bin storage area (further concerns about how the refuse will be collected which he has not stated).

davidmcn

The planning consent has nothing to do with the title or covenants, all of which are still going to be valid. Presumably the neighbours can also use the access for pedestrians, they don't need to be in a car? If they're removing their vehicular use of the driveway, that might be a good thing from your parents' point of view.

mrschaucer

Your parents will still be able to drive along the drive as they currently do. The new neighbours will have to learn to keep a look out for passing cars ...

G_M

Did your parents review the planning application and submit any objection? Or has the application not yet been heard/granted?


Planning of course is a separate matter from the rights/obligations granted by the two Titles, your parents' and the neighbours. These are unaffected by any planning decision.
What exactly do the Titles say about access, ownership, maintenance etc?


And what exactly does the Planning application say?

georgiab432

We submitted several objections along with neighbours, all of which had valid points, however due to the borough we live in, it seems that the Council favour development (a well known fact). The planning was granted and building works looks like it will be starting soon.  On the deeds to our house it states; 'the said garage way is to be used for the use only of one private motor vehicle car for each house and no parking of any vehicle or article whatsoever is to be allowed on the garage way. This covenant shall run with the land".  Where do we stand with regardings to scaffolding and works carried out, which will block access to our garage?

greatcrested

I doubt that a temporary blockage as you describe would constitute a breach.

And even if it legally did, the practicality of getting a court injunction before the scaffolding etc was up, used, and removed would make enforcement pointless.

I can't believe you will suffer undue hardship to put up with this short term inconvenience, and in the interests of neighbourly relations just have a chat over tea and cake (no more than 6 of you for the tea party) and ensure they re-instate your access in the shortest period possible.

Having said that, I'm still unclear of the exact Title covenant and current set-up as you have not quoted the neighbour's Title, nor have you described the 2 Title Plans.

* this is a double-width drive, yes?

* what is the definition (in the Title and/or Plan) of 'the garage way')

* who owns, the drive(s)? You each own half width (single car width)? With ROW over the other half?

* who owns the gated access? Who has ROW through it? Who maintains it?

If you have ROW as described over the neighbour's section of drive , and that is being removed, or if it is a single width drive now being removed, then you can prohibit the construction from taking place, not on Planning grounds, but based on the covenant.

georgiab432

We have had problems with the neighbour for a very long time now, as have others, so having a chat over tea and cake is not an option.  They don't even live there, they have been renting rooms out.  
The covenant states; 'right of way over the land edged in red on the annexed plan at all times and for all reasonable connection with the use of xxx as a private dwellinghouse'.  Whilst it could be interepreted that conducting works is 'reasonable use', it means that it will completely block us having access to our garage because the width of the driveway is only big enough for one car, so putting up scaffolding will block access.  Currently, you can't even open a door when a car be driving down.   
Also, there are gates at the beginning of the driveway which obviousbly the neighbour intends on making an entrance to the flats.  On the deeds it states; 'each party will pay one half of extending the existing gate between the houses and new erecting gates along the road frontage'.  Can he get away with making changes to the gates? 
He will be changing his garage into a bin store room with large heavy duty bins, and nowehere has he noted how the bin men will actually collect the bins.  

princeofpounds

Hi georgia,

we understand that you don't like the development occurring next door. But if the planning process is over and done with, you cannot prevent it happening. All that you can do is defend your right of way, which will remain unaffected and is an entirely separate matter to the planning issues. The only things you can do to defend your right of way are:

- moving small obstacles yourself, when it is safe and reasonable to do so.
- write a letter, either from yourself or a solicitor, warning the other party to preserve the right of way.
- obtain a court injunction enforcing the right of way.

What matters is whether your right of way is subject to 'substantial interference'. The case law on this is complex because it has to take account of some very individual circumstances, so it is hard for laypeople like us to give you definitive answers as it requires knowledge of many past precedents and how courts interpret within this framework.

Having said that, here are some thoughts:

- Building work does not necessarily cause substantial interference, because of its temporary nature. However, total obstruction for an extended period of time may be interference. 

- Having pedestrian access onto the right of way is unlikely to be an interference in itself. It already exists.

- A new gate may or may not be interference depending on how it is constructed. Certainly it will be hard for them to install a gate that they can actually close. There is all sorts of case law here about buttons, fobs, turning in from the road to a closed gate etc.

- Having a bin store in the old garage is not interference. However, how the bin collections are managed may be interference - certainly there can be no leaving them lying around on the driveway for extended periods if it blocks you.

- New construction or objects like planters that narrow the right of way may be interference, but only if they are substantial enough to affect its traditional operation. Doors or windows that open outwards into the ROW may also be an issue.

Getting clear legal advice on these and similar issues necessitates going to a lawyer who specialises in these cases.

You need to answer greatcrested's questions more exactly to get some more useful input, and in particular the detail about both title plans and the relevant notes on both sets of deeds.

georgiab432

Many thanks for all your help and advice.  I think we are going to have to take it up with a lawyer now and see what our next steps are.

nyermen

Thoughts:
- Assuming the garage is being used for a car - what if the car is in the garage when the scaffolding is put up?  That would be surely be "substantial interference" (car stuck for weeks potentially?).  Not to mention right of access to highway? (assuming its that way around, there is no specific right of access the other way around ie. for a car to access private land).
- Suggest you also check your insurance, if the scaffolding means there is potentially access to your property upstairs (if the shared access size description is what I think it is) they may need to be notified?

Wanderingpomm

They need to officially tell you they are blocking the access. Until then just keep using it.