Is Right of Way automatically granted after a period of time

Verora

I live on a private road where almost twenty years ago the builders put a dropped kurb in for the property adjacent to it that has no right of way onto the private road. I've been told it's worked so far as a 'gentlemens handshake agreement'. I have also been told that after a certain amount of time and regular use they will automatically assume legal right of way. Is this correct?

I don't want to stop that happening if it is true, but I'd like to record those rights clearly in the Register of Titles and control the level of access they have assumed. There isn't the parking capacity to accomodate the extra residents/guests on the road and I'd like to avoid any further confrontation as parking is often less than 15m from the entrance to the road and up on the pavement (despite the signs that have been put up). I'd like to make it clear that right of way is for the purpose of access to and from their property only.

unforeseen

What register of titles do you want to put it in? Are you now the owner of the private road?

Wouldn't the builders have implicitly granted a ROW by supplying a dropped kerb to the house? 

Section62

Verora said:

I live on a private road where almost twenty years ago the builders put a dropped kurb in for the property adjacent to it that has no right of way onto the private road. I've been told it's worked so far as a 'gentlemens handshake agreement'. I have also been told that after a certain amount of time and regular use they will automatically assume legal right of way. Is this correct?

I don't want to stop that happening if it is true, but I'd like to record those rights clearly in the Register of Titles and control the level of access they have assumed. There isn't the parking capacity to accomodate the extra residents/guests on the road and I'd like to avoid any further confrontation as parking is often less than 15m from the entrance to the road and up on the pavement (despite the signs that have been put up). I'd like to make it clear that right of way is for the purpose of access to and from their property only.

It is very sensible to want to get the situation properly recorded. And all parties should see that as being in their own best interests.

In essence, a right of way is just that - a right to "pass and repass".  The right doesn't by itself include other rights to use the land such as for parking.  There is a vast amount of case law on the meaning of "pass and repass" and what is and isn't included - but usually there are case specific details. So you would all need to get professional legal advice if there are particular things you want included/excluded.

Whether or not a right has been established after a certain amount of time also depends on the specifics of the case. If use of the road has been by 'agreement' then the nature of that agreement may be important as to whether a right has been established that cannot be withdrawn.  E.g. driving in and around a supermarket car park won't give you a permanent RoW over it, because somewhere on the site there should be a sign informing you that you are there by agreement (and also there is no intent to dedicate the area as highway).

That last point is something all owners of private roads need to be aware of - public rights of way can be created on certain types of land. So even if the neighbour doesn't have an established private right, the owners of the road need to ensure that a public right (via dedication) doesn't/hasn't come into being, which the neighbour could then use in exactly the same way as any other member of the public.  Search for information on "section 31 highways act" to see what that involves - and check with the other owners to see what the situation is.

Section62

unforeseen said:

Wouldn't the builders have implicitly granted a ROW by supplying a dropped kerb to the house? 

Not necessarily.  A kerb is simply a method of protecting the edge of a paved area, in this case a road.  The level of the kerb relative to the surface normally has no legal significance.  Laying the kerb 'dropped' could be a choice to facilitate future access, but with no agreement given that the kerb can actually be used for (regular) access.

For example, a farmer might find it useful to occasionally enter a field via a private road, but the owners don't want to give RoW.  They could agree that the farmer can use the road - with prior permission each time - to get heavy equipment into the field. Foreseeing the possibility of the heavy plant damaging normal-height kerbs, the road owners might install (or agree the installation of) kerbs at a level closer to the road surface (aka a 'dropped kerb').  The existence of that kerbing doesn't alter any rights.  But the road owners do need to be careful the farmer (or in the OP's case the neighbour) doesn't start using the access contrary to the agreement.

Contrary to the urban myth (spread in part by local councils) the presence or absence of a dropped kerb isn't the determinant of whether an access is 'legal' or not.

user1977

Is the right of access relevant here? Sounds more like the concern is how to control parking.

sheramber

Can you explain what the actual problem is that you are trying to prevent?

smcqis

Over 20 years 

bouicca21

I wonder about the ‘private road’.  Where I live there are lots of roads that residents refer to as ‘private’ but actually they are all unadopted public highways.  Anyone can use them.  This is very different to a ‘real’ private road near to a relative’s home which has a barrier so that only residents of the road can unlock and pass through it.

AdrianC

sheramber said:

Can you explain what the actual problem is that you are trying to prevent?

This...

If you're trying to stop them parking on the private road, then a RoW over the pavement is irrelevant.
If they don't have an RoW, how does the owner of the private road (whoever that may be) plan on preventing them from driving across the pavement?

The owner would control their parking in the same way as they would control any other parking. And their options to do that are very limited, legally - signage that complies with the legal standard to allow a penalty charge to be issued and enforced.

Section62

bouicca21 said:

I wonder about the ‘private road’.  Where I live there are lots of roads that residents refer to as ‘private’ but actually they are all unadopted public highways.  Anyone can use them.  This is very different to a ‘real’ private road near to a relative’s home which has a barrier so that only residents of the road can unlock and pass through it.

If they are roads which are unadopted but the public now have the right to use them then they've become unadopted highways, sometimes known as privately maintainable highways.

There's no actual need for physical a gate or barrier to make (and keep) a road private - the owner(s) just need to follow the steps outlined in Section 31 to prevent dedication occurring.

Gates and barriers just notch things up a bit as they prevent access to unauthorised users in addition.

Section62

AdrianC said:

If you're trying to stop them parking on the private road, then a RoW over the pavement is irrelevant.
If they don't have an RoW, how does the owner of the private road (whoever that may be) plan on preventing them from driving across the pavement?

If the BiB applies then the road owners putting up a boundary fence across the person's driveway/access would do it.  The person would have no right to enter onto the private land (the road) so the owners are entitled to keep them off it with a fence.  Or blocks of concrete, or parking a vehicle across it, etc etc.

AdrianC said:

The owner would control their parking in the same way as they would control any other parking. And their options to do that are very limited, legally - signage that complies with the legal standard to allow a penalty charge to be issued and enforced.

The way I understood the OP's problem is that they are Ok with RoW being granted, but are concerned that would also give a right to park.

So long as the agreement is carefully worded, a RoW can be granted which excludes parking rights.

Enforcing 'no parking' on private land is, as you suggest, not all that easy.

So if it were me, I would draft the RoW agreement in such a way that the person gaining the right can have it taken away from them if they (persistently?) park on the road.  Then the road owners have a very big stick to beat the RoW gainer with if he transgresses the 'no parking' rule.