Shared Driveway implications for new dwelling in back garden

Section62

eddddy said:

And just to be clear, objections based on who has rights to use the drive would be ignored by the council, as that's not a planning consideration.

(Edit to add...

Except perhaps, if there was a highways issue - like the drive's junction with the highway is dangerous, so you don't want an extra house which would result in extra traffic using a dangerous junction.)

The BiB isn't really correct.

If, as is very likely, the new dwelling is required to have 'x' off-street parking spaces then they need to be accessible from the public highway.  If there is no right for the new property to use the driveway then the parking spaces can't be used for parking.

Whether or not the planning/highways officers notice this and ask the right questions to establish the facts is not the same thing as whether or not rights to access to the property via the drive is/isn't a planning consideration.

The highways input to the planning process will should want to ensure that the parking spaces are large enough, and where appropriate space is provided for vehicles to turn round within the curtilage of the property, rather than having to reverse back down the shared driveway.

There will also be other considerations such as access for the fire service, and for refuse/recycling collection.

Access to the property is a fundamental planning consideration.... the edit you added is a good example of one of the things considered if the planning/highways officers are awake when the application passes over their computer screen.

eddddy

Section62 said:

If, as is very likely, the new dwelling is required to have 'x' off-street parking spaces then they need to be accessible from the public highway.  If there is no right for the new property to use the driveway then the parking spaces can't be used for parking.

I'm not sure if we're talking at cross-purposes.


Wouldn't the planning application simply say that access is via the driveway, and show the provision of off street parking off the driveway?

And if planning consent is granted,  it's then up to the applicant to make sure they have, or acquire, the appropriate rights to use the driveway.

For example, the applicant might intend to buy the land the driveway is on, or buy access rights to the driveway, if planning consent is granted.


I'm not sure that a neighbour saying "I own all/part of the driveway and I will not sell it to the applicant or sell the rights to use the driveway to the applicant" could be a valid planning objection.



Essentially, the deeds for private roads/drives are often constructed to give the same effect as ransom strips. In practical terms, the owners of the private roads/drives can prevent new houses being built, unless you pay a shed-load of money to the private road owners for the rights to use the road.

Section62

eddddy said:

Section62 said:

If, as is very likely, the new dwelling is required to have 'x' off-street parking spaces then they need to be accessible from the public highway.  If there is no right for the new property to use the driveway then the parking spaces can't be used for parking.

I'm not sure if we're talking at cross-purposes.


Wouldn't the planning application simply say that access is via the driveway, and show the provision of off street parking off the driveway?

And if planning consent is granted,  it's then up to the applicant to make sure they have, or acquire, the appropriate rights to use the driveway.

For example, the applicant might intend to buy the land the driveway is on, or buy access rights to the driveway, if planning consent is granted.

Yes, that's normally what happens, and if there's no objections and the planners/highways don't question it, the application gets consent, and it becomes an enforcement issue if the developer doesn't subsequently get consent for access via the driveway (if the consent is suitably conditioned).

eddddy said:

I'm not sure that a neighbour saying "I own all/part of the driveway and I will not sell it to the applicant or sell the rights to use the driveway to the applicant" could be a valid planning objection.

It isn't so much whether it is a 'valid planning objection'... the issue is whether the objection raises a material consideration.

If planning policy deems it necessary to provide off-street parking (and/or other access requirements) then it is a material consideration whether or not that access can be achieved.  If the access is only possible over land owned by others, and there is reason to doubt that access will be possible, then the applicant should be asked for more details about how access will be achieved (and maintained).

Even if access for parking isn't needed, there are other access requirements (e.g. fire and refuse/recycling) and perhaps most importantly for construction purposes.

These are all material considerations - and if an objector draws attention to them (for example by saying that consent to use land as an access route will be (lawfully) withheld) then the planning officers cannot ignore this.

One way out is to condition the consent so that construction can only commence once a legal agreement is in place which allows the required access over land owned (or restricted in some way) by others.  That way the developer gets their consent, but can only use it once access arrangements have been sorted out.

eddddy said:

Essentially, the deeds for private roads/drives are often constructed to give the same effect as ransom strips. In practical terms, the owners of the private roads/drives can prevent new houses being built, unless you pay a shed-load of money to the private road owners for the rights to use the road.

Agreed... and very often it is some form of planning requirement which makes this work for the existing owners/residents.

BikingBud

How might potential damage or degradation to the drive due to access for heavy vehicles and plant or utilities, be assessed and made good?

I would suggest it is entirely unreasonable for the costs to be split as the land owner where the new build is occurring is making all the gains and the other 5 appears to get no benefit only disruption and hassle, before new neighbours move in!

Chandler85

A lot of this assumes the new property is a separate entity and not a detached granny annexe which will be on the same title as the original property and so access is still granted.
It becomes an issue assuming that the title is split and becomes an additional property, that then seemingly has no access due to no rights to use the driveway.

canaldumidi

Chandler85 said:

It becomes an issue assuming that the title is split and becomes an additional property, that then seemingly has no access due to no rights to use the driveway.

Which goes back to my original, admittedly ill-informed conjecture, that the rights of the original Title would pass to the new Title as well as remaining with the original, since both Titles would be within the curtilage of the original title. As the rights (+ obligations) pass with the land, which has not altered.

Anyone confirm or correct this assumption?

Section62

canaldumidi said:

Chandler85 said:

It becomes an issue assuming that the title is split and becomes an additional property, that then seemingly has no access due to no rights to use the driveway.

Which goes back to my original, admittedly ill-informed conjecture, that the rights of the original Title would pass to the new Title as well as remaining with the original, since both Titles would be within the curtilage of the original title. As the rights (+ obligations) pass with the land, which has not altered.

Anyone confirm or correct this assumption?

I think your first post in the thread had it covered - it is about the detail of the wording of the deeds and how exactly the rights and responsibilities are granted/imposed.

It could be that the rights are transferrable (/duplicable?) if one of the plots is sub-divided, or it could be the rights are specific to the owner/occupier of the (first) dwelling on the (original) plot.

And that's before we get into whether there are any restrictions on additional building/sub-division....

I'm not a lawyer, but recognise this as a situation where expert legal advice is needed.

eddddy

Section62 said:

It could be that the rights are transferrable (/duplicable?) if one of the plots is sub-divided, or it could be the rights are specific to the owner/occupier of the (first) dwelling on the (original) plot.

I'm still not sure how that can have an impact on the planning decision process. For example,

• The applicant says the rights are transferable/duplicable (and maybe even says they have legal advice confirming that) and/or they have a lawful right to use the driveway for access to the new property.

• The neighbour says the rights are not transferable/duplicable (and maybe even says they have legal advice confirming that) and/or it's impossible for the new property to have a lawful right to use the driveway for access.

I can't see the planning authority getting involved in that dispute. The planning authority wouldn't attempt to read the deeds and/or take any specialist legal advice on the deeds.

So I would expect a planning authority to completely ignore that in coming to their decision - apart from maybe adding some planning conditions.


But even then, I'm not sure that they could have a condition along the lines of "The applicant must provide legally binding proof (for example, a court ruling) that the property occupiers have the lawful right to use the driveway, before development commences"

Seriouslycurious

I can't thank you enough for all your comments even without a firm position one way or another. I can answer a couple of the questions that have popped up. The proposed property is a detached house. The intention is a fence across the middle of the current garden so we have assumed it would be a separate title. You have me convinced that we need a lawyer and that's the route we will take if pp is granted. Still very happy to hear any further thoughts on it. Thanks again

Section62

eddddy said:

I can't see the planning authority getting involved in that dispute. The planning authority wouldn't attempt to read the deeds and/or take any specialist legal advice on the deeds.

So I would expect a planning authority to completely ignore that in coming to their decision - apart from maybe adding some planning conditions.

But even then, I'm not sure that they could have a condition along the lines of "The applicant must provide legally binding proof (for example, a court ruling) that the property occupiers have the lawful right to use the driveway, before development commences"

(BiB) Why not?  At the last place I worked we had a whole section within the authority's legal department to support the planning function, which included giving specialist legal advice on matters such as this.  It isn't likely to happen with a routine application which isn't subject to objections, but if there was a fundamental issue involved (e.g. the ability to access a property) then the planners would seek guidance from the legal team.

If vehicular access to the property is a planning requirement the authority cannot give consent to the development knowing that access cannot/will not be provided. Such a decision would most likely be irrational and vulnerable to legal challenge.

INAL, but the approximate form of wording I'd expect for a condition of this type would be something like "No  development  shall  commence  unless a permanent right of pedestrian and vehicular access to the site has been obtained by the applicant and evidence of such has been provided to the satisfaction of the local planning authority."