CONSERVATORY/BOUNDARY/RIGHT OF WAY

Soot2006

Slinky said:

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Another thought, what sort of door do they intend? If it's got any glazing there will be privacy issues for you.

And if it hasn't, they risk opening it INTO someone if they're planning an outward swing ...

Jeepers_Creepers

Fair do's, S62 - I did mean 'bludy nuisance' as being 'insistent', and not being fobbed off. As to the choice of councillor, that could well make sense too. But when t'inlaws were looking at an aggie-tie house a couple of years back, their most sympathetic supporter was the local councillor who was on the PC, as he knew the background stories of the house.

Jeepers_Creepers

KEMYST said:

my wife and I have had a long chat this morning. I can see that we are perhaps looking too much at this problem. So, we will swallow the overuse of the right of way because I can`t see a `mid` solution to it without going to Court.
I will pursue the PD regarding the irrationality of their decision through the complaints procedure .

The final problem is the gate. Unless anyone on here can tell me the opposite, I am pretty certain that they cannot remove the gate without our permission - but apparently they must remove the gate to have the construction built. Would it be unreasonable for me to have a gate and wooden panel installed in front of the current gate? After all, if I do that , then I am only mirroring what they have done. Then they can remove the gate and I don`t have to look at white plastic for the rest of my life. 

Ignore the existence of the connie for the moment. That gate represents a legit RoW, which you, of course, accept.

Is that your gate or theirs? You say yours, but it does look to be set in so that the posts are in line with their extension wall? So, quite possibly it's been on their land all along. Does that make it theirs? I still dunno.

Regardless, there are - I'm pretty sure - a few things you can state with reasonable certainty (based on other examples I've seen and heard about, but not based on analysis of property law....);

1) Can you put a second gate in front of that one? Pretty certain that's a 'yes', although it should not impede their access to their RoW. So, no locks (without providing keys). Your gate should allow access on to the RoW when they require it. If their gate or doorway prevents them from doing this, that's a different issue.

2) In which direction should your new gate open? Pretty clearly that should be over your land, or else it could be said to be 'trespassing' over someone else's. Is that pushing the idea of 'trespass' a tad too far? Perhaps, but I don't think so. Think it through; is it much different to a boundary window having an 'opener' which crosses the border? I don't think so, and that's a planning no-no. Or the fitting of rainwater goods which dittos? That's a planning ditto.

So, what is their proposed door threatening to do? Yes, 'trespass', like a window opener. It's a fine point which will undoubtedly be open to challenge, but it seems pretty clear to me that a door which swings open over another person's land is unacceptable, just like the opening section of a boundary window would be. No?

3) Almost certainly - unless the land is doing something truly unexpected in their garden - the neighbour would be able to install a gate and steps through their fence at the far end of that wall/fence to the right. The cost of doing this should be small. A similar approach at the front of their connie (ie, steps) would allow them to have doors which open on to their garden - which they would surely prefer? And then egress out the far end of their garden without having to run the gauntlet of your disparaging glare.

So, how can you try and persuade them to look at this alternative? Carrot and stick, I guess. First outline how much easier and better it would be for them to have an access which doesn't rely on someone else always having to clear away their stuff, like washing... Point out what is surely the better option; an unhindered RoW much closer to the road.

Then ask them if they genuinely consider it ok to have a door opening over someone else's boundary and land. When they claim 'Yes...', ask how it's different to a window opener doing so. Or rainwater goods. Both constitute trespass, and the latter two are certainly (as I understand it) outlawed by Planning. As they ponder on that, perhaps it is time to 'put them on notice' of your intention to prevent such trespass of part of their house over your land, just as you would any attempt to have a window section opening over the boundary, rainwater goods, vent pipes - you name it. You totally acknowledge that they have a RoW, but the fabric of their house does not. So if they intend to continue, they have been warned. Reinforce that point - they can perambulate over your land, parts of their house can not. "If you were to try and take your roofline over the boundary, I'd stop you. If you tried to fit a window that opened over the boundary, I'd stop you. If you tried to fit a vent pipe that ditto, then ditto. Guess what I believe I am entitled to do with your door? You proceed at your own risk, but I will do everything that I can to prevent this trespass."

You'd need to be clear that you want to take this approach. It might even be considered petty, but they are taking the complete p***. What strikes me about this case, and what really galls, is that they have alternatives, better ones. As far as I can see, there's no question of this. They can have that door opening inwards - no question. They can form an alternative door/patio/French/Bi out the front of their connie. They choose not to do this, at the expense of someone else. Makes me grrrrrr.

Having been put on notice that, should they try and proceed, you will challenge this just as you would an opening window coming over your land, they therefore have to take responsibility for whatever outcome manifests itself. If they do not wish to consider alternative door positions now, or even issues such as fire egress, that's their call, but you have given them advance warning of your intention, and they cannot be guaranteed this trespass won't be obstructed. There is nothing to prevent them from fitting a fire escape window if they have genuine concerns, because what they are doing by pursuing the outwards-opening door over neighbouring land is almost certainly wrong, and they have alternatives.

They do not have to do this - they choose to.

Did I say 'grrrrr'?

KEMYST

Thank you so much for your time. We have an appointment with a solicitor next week. Will let you know how we get on.  

Section62

KEMYST said:

Thank you so much for your time. We have an appointment with a solicitor next week. Will let you know how we get on.  

Have you drawn up some kind of list of what you want to discuss with the solicitor?  Their time is literally money and there's no point wasting it with things they can't help you with.

Identifying the things that matter and concentrating on those is the best way.

E.g. Don't bother with the 'overuse of the RoW' point. It is a dead end. You could spend 30 mins discussing just that and still be no further forward.

If you wanted to get a professional opinion rather than relying on the advice given on this forum that would be understandable, but bear in mind the cost - in money if you are being billed by the time-unit, or in time if you have a fixed-duration appointment.

sheramber

 could a new entrance not be made in the part of the fence/wall where the garden  will be getting uprooted anyway to extend the conservatory  

they could exit the conservatory into their own garden then turn fight to come through .

. Where the doors are would have to be solid for your privacy- and theirs but they could out a blind up.

Doozergirl

Categorically. 

You can put a new gate on your side of the boundary. It is your land and you can put whatever the hell you want on it, but the gate should open into your land (because you own it) and you cannot lock your neighbours out of it (because they have right of way)

Any solicitors costs are then the borne by them - an hour - before any action is entirely aborted because they haven't got a leg to stand on. 

That's the whole thing dealt with.  The only thing that they are wrong on is the door opening outwards.  Instead of scratching around for straws to cling to, just stop them  from doing the one thing they legally cannot - open a door over your land.  

GDB2222

I suggest trying this forum. 

https://www.gardenlaw.co.uk/phpBB2/index.php

They have over 3000 threads on rights of way, and the forum has a reputation for providing definitive advice.

KEMYST

OK...I read the above and came away totally depressed. The RoW abuts three windows and our back door. We accept that intrusion to our privacy is inevitable. Apparently, it is almost impossible to show excessive use. So, it looks like we will have to allow for the mess in constructing the conservatory. But just when we got our head around this it seems that any use of our own property could be construed  as an impediment to the right of way because it is only 7` 6" wide. It would seem we have no rights at all. My wife is wondering how she is going to dry washing during the period of construction. 

KEMYST

PS When my wife bought the property, she was told by the solicitor actually living here that there was no right of way....but that`s a long story. She would never have bought the house if she had known. This situation id bad enough for me, but she is very upset. We have never had problems with neighbours before (and I`m 74 and she is 72). I`ll let you know how we get on.