The neighbour of my immediate neighbour threatening to break my fence if I try to install it.

Abid_shah

doodling said:

Hi,

Having looked on Goigle maps, I realise that an access to the rear from Brookside Close hasn't been created, it is a brick wall (or a rather broken fence).

The passageway would be no wider than the gap between numbers 19 and 21 so providing that that width is maintained between the proposed fence and the wall / fence with Brookside Close then the arrangement would match the historical plan.

There remains a question as to whether users of the passageway have acquired a right to cut across the corner of the OPs garden when turning from the back passage into the passage between 19 and 21 - this would be a matter of provable historical use.

On my proposed line for my rear fence the Right of Way will be about two feet wider than the entrance of the passageway between 19 and 21.

he bought the house in 2008 and claims he used it in the past. I got my house in 2014 and since then it has never been used for vehicles by anyone until I foolishly cleaned it in 2020. Since 2021 until now he uses it occasionally for his car about 3-5 times since June 2020.

Section62

There's a risk that some of the advice being given here will wildly mislead the OP, who already has the belief there is no vehicular access right for the neighbour at number 17.

Spreadsheetman said:

Given it's a 1930's title the access will have been just for garden materials/(motor)cycle parking/bins/coal on hand carts, no-one in a terrace like that would have owned a car in the first place.

This is irrelevant and inaccurate.  The 1930's was the start of the explosion of private car ownership (~1 million in 1930, ~2 million by the war).  People buying houses in suburban London were aspirational - if they didn't own a car when they moved in it was still likely they had that in mind.  1930's suburban development is generally poorly designed for two or three cars per household, but provision was already being made for at least one car.  A glance at the streets surrounding the OP's will quickly confirm this.

All that matters to the OP is whether or not the neighbours have a vehicular right of way. (see below)

doodling said:

But also from that plan, then unless the passageways from Roseberry Avenue are wide enough for a vehicle then the passageway at the rear wasn't originally a vehicular right of way.

Has there been a sufficient period of vehicular use of the passageway when access to it was created at the rear that it has now become a vehicular right of way? Evidence of that would be important to support the grumpy neighbour's case, otherwise I don't think he has a right to drive a car down it.

A motorcycle is a 'vehicle'.  A barrow is a 'vehicle'.  A right of way is a right of way unless constrained in some way.  That constraint could be legal (e.g. "on foot only") or physical (the way only being (say) 2 feet wide).

The titles the OP has shared make no reference to the RoW being constrained legally.  It is wide enough for typical cars and light vans to be driven down.

It is not for the neighbour to prove he has a right to drive a "car" along the RoW, it is for the OP to prove that no vehicular right exists - and in my experience there's next to zero chance of them being able to do so on the evidence we have seen (or researched ourselves) so far.

doodling said:

So far as I can tell, the OP is not proposing to obstruct the right of way but to constrain it to its historical extent. Whether the actual right of way now matches its historical extent is a question we don't have enough information to answer.

There are two separate issues here which people are confusing.  The first is the width of the part of the passageway from the road to the rear of the properties.  The second is the size and shape of the passageway where it turns to run parallel to the road (in each direction).

The first question is fairly straightforward as the historic streetview images clearly show the passageway leading away from the road - the fences being approximately parallel and wide enough to drive cars or light vans along.

The second part is more complicated because the boundaries appear to have changed and/or have been defaced.  If the OP and the neighbour cannot agree on where the fenceline should be (shape and position) they will potentially end up in an expensive legal fight involving surveyors and solicitors.

However, from his initial posts the OP is not just arguing about the width (/shape) of the RoW - he is disputing the fundamentals of the neighbour having any RoW over the land the OP owns.  Unfortunately this thread has zigzagged around so much (and still lacks clarity on basic facts) that the OP is now getting inaccurate advice based on misunderstandings.  The OP seems happy with the advice that supports his belief, but there is no point in that if the advice is wrong.  It could lead him into making a very expensive mistake.

doodling said:

The proper use of the passageway, in the absence of evidence to the contrary (which might exist but we haven’t yet seen), appears to be on foot or with a barrow or bin, not with a vehicle. So perhaps I should call them the optimistic neighbour?

That isn't how it works.  We've seen evidence the neighbour has a right to use the passageway.  There is no evidence we have seen which constrains the type of vehicle the neighbour can drive along the passageway, other than the physical width that can be seen on streetview images - which is more than adequate for most cars and light vans. (and a 'barrow' is a vehicle)

IMV the neighbour at 17 is almost certainly within his rights to drive a vehicle along the RoW between 19/21 and also the part to the rear of number 21.  So personally I'd substitute 'optimistic' with 'unfairly maligned'.

markin

The scale on the 1930s map would indicate its always been at least around the width between the houses 7-8ft?

 The back passage looks a tiny bit wider than the side, but the side fences could have drifted a little also.

Section62

Abid_shah said:

My main question is what needs to be the width of the Right of Way over my land to the rear of my Garden?

are there any documents other than mine of neighbours register and plan which will help specify the width of the Right of way at the rear of my garden?

Abid_shah said:

On my proposed line for my rear fence the Right of Way will be about two feet wider than the entrance of the passageway between 19 and 21.

There may be original construction/transfer drawings in someone's deeds, or the council may have an archived copy.  These plans would show accurately the width and shape of the area which was allocated to the RoW.

The width of land you leave at the rear of your property is secondary to the shape of the land.  IMV your fence line needs to allow a vehicle that can fit between 19/21 to turn right into the part of the passageway which runs behind 21/23/25/etc.  There are two ways that could be achieved - either by making the width great enough to make the turn, or to round the corner off.  There is some evidence - but not conclusive - that the corner of your fence was originally 'clipped' to about 45 degrees.  If so, that would be consistent with other similar rear accesses in the area.

If you accept number 17's right to use the passageway with a vehicle then IMV the size and shape of the area at the end needs to be sufficient to allow that turn to be made.

We need to get past the idea that the neighbour wants to drive on your garden and instead look at what you need to do to allow the neighbour to exercise his right - but only to the extent he and the others are entitled to.

Bendy_House

Abid_shah said:

doodling said:

Hi,

Having looked on Goigle maps, I realise that an access to the rear from Brookside Close hasn't been created, it is a brick wall (or a rather broken fence).

The passageway would be no wider than the gap between numbers 19 and 21 so providing that that width is maintained between the proposed fence and the wall / fence with Brookside Close then the arrangement would match the historical plan.

There remains a question as to whether users of the passageway have acquired a right to cut across the corner of the OPs garden when turning from the back passage into the passage between 19 and 21 - this would be a matter of provable historical use.

On my proposed line for my rear fence the Right of Way will be about two feet wider than the entrance of the passageway between 19 and 21.

he bought the house in 2008 and claims he used it in the past. I got my house in 2014 and since then it has never been used for vehicles by anyone until I foolishly cleaned it in 2020. Since 2021 until now he uses it occasionally for his car about 3-5 times since June 2020.

As far as can be gleaned from the map on https://maps.nls.uk/view/103657817 which presumably matches the one in your deeds and LR, the width of the RoW section behind your garden does 'appear' to be slightly wider than the access passageway to the road. So, if you leave that RoW section behind your garden as close to the best possible estimate of its 'true' width (ie the ~2' wider-than-the-passageway width you are proposing), this is likely to be very near as correct, true and accurate as anyone could determine without resorting to surveyors. And I cannot see any reason that you should have to do this.

And your proposed fence line matches that of the neighbours to your right? And their fences have been there for some time and appear to be established?

In which case, I think you've arrived at your answer. Put up the fence, make sure you have CCTV covering it, and explain - if/when challenged - "I believe that to be the correct boundary for my garden and the section which has the RoW over it. If you don't agree, then you need to pursue this in the correct legal manner." I can't see any (legal) move the guy can then do other than to employ a surveyor himself, which I suspect he won't do unless he really believes it'll return a 'you need to move your fence another foot, pal' result. In which case - if the surveyor is legit - you may have to.

 It also wasn't 'wrong' for you to put up a fence and gate over that RoW 'entrance' provided all those who wished to access it were in agreement and had a key. I understand that even 'agreement' isn't always required, provided the gate width doesn't restrict the RoW in any way for which it was designed, and all users were given keys; if, for example, you had a pedestrian RoW cutting across the middle of your garden, it would be reasonable for you to wish to secure this, so you could put up gates and provide keys to all users. Harder to justify in this case, tho', since the intended use of that RoW is uncertain, and could be challenged (and you likely don't want to go there...) So, you did the right thing in removing the fence/gate when asked to.

So, what to do? That's your call. Totally reasonable that you don't want to give up even a tiny bit of your garden, especially to someone who seems to act on intimidation rather than the legal method. If you have a good cause to be concerned that there will be increased vehicular traffic down that passageway, coupled with regular access being made by a steady stream of his customers, and the noise and smell from a car repair business, then best you stick to your guns, place the fence where you truly believe and have worked out it should be, and be ready to call the police at the first hint of a threat.

Doesn't this guy's direct neighbour have an opinion on this? Have you spoken to them? Are they happy with having a car repair business next door?

That leaves the option of asking Trading Standards whether such a business is permitted in that residential area.

Anything more than this - eg trying to ascertain whether the RoW includes vehicles, and of what type, etc - will likely involve a complex legal argument, and very possibly won't even provide an accurate answer at the end. Ie, it would likely be determined by 'argument' rather than locating a helpful 'clause' anywhere. Who will win the argument - "It was obviously never intended for vehicles as it's unlikely anyone would have owned a car at that time/it's too narrow/it would have mentioned 'vehicular' in the covenant had it applied..." vs "It doesn't say NO vehicles, so anything goes..."

Ath_Wat

Ath_Wat said:

Abid_shah said:

CardiffCrank said:

I was using it as I said I paid for it to be cleaned and put a gate at the start of passageway agreeing with neighbours and giving them keys. Later on no 17 objected to it and had to take it down even though he accepted the key 

Charming man!

I was using my own garden not the passageway

In this image it looks like someone, presumably living in your house on the right,  has a trampoline there and has basically extended their garden across the passageway, which is not just between the houses but all the way down between the gardens.

It also looks here like a brick building has been built where the alleyway ought to be, which would surely render the fencing immaterial.  Is this just optically misleading?  Or is there an ongoing dispute about that strip of land and the right of way?

OP, what about this brick built outbuilding in "your" garden?  That clearly looks like it has been  built across the alleyway.  What's the story with that?  Is it still there?  or is it a foreshortening effect and it's at the back?  The garden looks longer than this in the satellite view.

Section62

Bendy_House said:

It also wasn't 'wrong' for you to put up a fence and gate over that RoW 'entrance' provided all those who wished to access it were in agreement and had a key. I understand that even 'agreement' isn't always required, provided the gate width doesn't restrict the RoW in any way for which it was designed, and all users were given keys...

The OP's title plan shows the boundary running along their side of the passageway, therefore the passageway and 'entrance' appear not to be his property.

You aren't allowed to put fences and gates on other people's land - unless they agree to it.

The OP still hasn't clarified who owns that part of the the passageway - whether it is included in number 19's title, or if it belongs to a third party.

Gating of these rear accesses is a real problem in this part of London - they are common, and often the ownership is uncertain. In some cases local councils have had to intervene (due to crime and ASB) and put gates up - a virtual tour of the OP's neighbourhood will reveal 'council' gates being installed at various locations.  You aren't allowed to take unilateral action.  Hence the LA needing to step in.

See here for an example policy -

https://moderngov.harrow.gov.uk/documents/s29216/Gating policy and procedures - appendix.pdf

Section62

Ath_Wat said:

OP, what about this brick built outbuilding in "your" garden?  That clearly looks like it has been  built across the alleyway.  What's the story with that?  Is it still there?  or is it a foreshortening effect and it's at the back?  The garden looks longer than this in the satellite view.

It is one of the garage blocks for the flats behind - nothing to do with this passageway other than being part of the boundary. The  orange arrow indicates where the passageway meets the road.

markin

1999 - 2003 - 2006 -2013 

Clearly the house over the alleyway keeps encroaching the back alleyway.

2006

 

2013

theoretica

So there was a clear fence until sometime after 2013 - also visible on google streetview.  Seems a pity it was taken down to confuse the issue between alleyway and garden.