Access rights.

Easement12

Hello,

We have recently been challenged by our new neighbour regarding access to our driveway. To access our driveway, we cross a portion of our neighbours driveway and a strip of unregistered land. We have lived in the property for 3 years and had no prior issues or questions over our access, although this neighbour only moved in recently. Our garage, driveway and gate have been in situ since 1981. The previous owner of our property has told us that she 'always had access' and I understand that this was never challenged.

I believe there may be a two paths to demonstrate our access and was hoping for some advice on these.

Firstly - the use has been continuous, not in secrecy and unchallenged since at least 2007 to 2022 (and likely before with the garage being built in 1982). Does this sound like a good case for prescriptive easement? I understand that this would require a statutory declaration from the previous owner and I'm not sure how easy it will be to get her to sign this, and would still require evidence of use from 2002-2007. The previous owner (2007-2019) did answer a questionnaire during the sale to state that she had driveway access and I have looked back through google earth images and see a can on the drive in all images back to 2004.

Secondly - the end strip of my neighbours drive is highway maintained at the public expense, with a public right to pass and repass over it. Does this include vehicle access? If so we have a strong argument that we only cross over this region (and the unregistered strip) to access our drive.

Finally - The land our garage was built on was purchased in 1981, with a right to build a garage on it. This right is documented in a land registry document for our title, although I have as yet been unable to track down the original conveyance. This conveyance may also include details of rights of access that may have been granted along with permission to build the garage.

Thanks for any guidance!

Section62

Easement12 said:

Secondly - the end strip of my neighbours drive is highway maintained at the public expense, with a public right to pass and repass over it. Does this include vehicle access? If so we have a strong argument that we only cross over this region (and the unregistered strip) to access our drive.

The starting point is if it is highway then it isn't your neighbour's property for them to control who uses it.

The right to pass and repass is in and with anything that it is lawful to do on that part of the highway.  If the part of the highway you are driving over to get to your property is either 'carriageway' or a 'vehicle crossover' then you can drive across it with a vehicle.  But if it is only verge or footway then the situation is slightly different - but applies equally to you and the neighbour.  Bottom line, the neighbour cannot 'police' your use of the highway - at most they can report you to the Highway Authority if they believe your use of the highway is unlawful (or possibly the real police in some circumstances).

Do you know who owns the unregistered strip of land, or why it exists?

Easement12

Thank you for the reply Section62.

The information I have from the highway records manager at the council is that the land I would be crossing to access my driveway is 'unclassified' road, maintainable at the public expense. They go on to say that the council "owns very few of the roads it maintains. However, in law, highway rights take precedence over those of the sub-soil owner who has no control over the highway and must not enclose or build upon it, place obstacles on it or impede the public right to pass and repass over it". Our neighbour is the sub-soil owner (as we understand from his title plan).

The coloured strip marking 'unclassified road maintainable at the public expense covers the street, pavement and end portion of our neighbours driveway. He relies on crossing the same area for access to his private driveway.

I do not know who owns the unregistered strip or why it exists. 

Section62

Easement12 said:

Thank you for the reply Section62.

The information I have from the highway records manager at the council is that the land I would be crossing to access my driveway is 'unclassified' road, maintainable at the public expense. They go on to say that the council "owns very few of the roads it maintains. However, in law, highway rights take precedence over those of the sub-soil owner who has no control over the highway and must not enclose or build upon it, place obstacles on it or impede the public right to pass and repass over it". Our neighbour is the sub-soil owner (as we understand from his title plan).

The highway records manager is correct about the meaning of highway land.

In particular that nobody (without authority) can impede the right to pass and repass.  So if your neighbour tries to stop you driving over 'their' land in the mistaken belief they control it, you could ask the highway authority to explain the situation to the neighbour in very clear terms.  The highway authority has a duty to "assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority..." - which would include having a word with someone who attempts to deny others the right to use highway land to pass and repass.

Easement12 said:

I do not know who owns the unregistered strip or why it exists.

This could be more of a problem.  If the neighbour owns it then they could potentially prevent you crossing over it unless your access rights cover this land as well.

It might help if you could share a plan/photos of the driveway/road, obviously redacting any identifiable features etc.

Easement12

Thanks again Section62 - this is really helpful information with regards to the right to drive over highway land.

With the unregistered strip, we can be confident that our neighbour does not own this. There are a few small parcels of land forming boundaries with my property and the neighbours. Historically the land was owned by a University college, with a parcel purchased by the previous owner of my property in 1981 for the purpose of siting a garage - with permission for building a garage detailed in the conveyance. I am attempting to track down this conveyance hoping it may detail access rights over the unregistered land which is likely to belong to the same college.

In my research into this I came across the idea of caution against first registration, am I correct that this would notify us in the event that the owner of the unregistered land initiated proceedings to register the land?

TELLIT01

Why do you have to drive over part of your neighbour's driveway?  Can you provide a couple of photo's to clarify the layout?

Norman_Castle

Easement12 said:

The land our garage was built on was purchased in 1981, with a right to build a garage on it. This right is documented in a land registry document for our title, although I have as yet been unable to track down the original conveyance. This conveyance may also include details of rights of access that may have been granted along with permission to build the garage.

Would this have required planning permission and if so would that have mentioned the access arrangement?

Easement12

Norman_Castle said:

Easement12 said:

The land our garage was built on was purchased in 1981, with a right to build a garage on it. This right is documented in a land registry document for our title, although I have as yet been unable to track down the original conveyance. This conveyance may also include details of rights of access that may have been granted along with permission to build the garage.

Would this have required planning permission and if so would that have mentioned the access arrangement?

This is a good point - I have reviewed historical applications on my property but unfortunately there is no application for the garage. There are applications from the late 70s/early 80s which show the position of the gate and label 'vehicle access' providing evidence that this has existed for decades.

Interestingly, when I looked into planning history - I found that my neighbour has recently applied for planning permission for a small extension on his property. In the attached site plans, his ownership of the driveway does not extend as far as it would appear from his title plan. Is there any reason why these would differ? Does the site plan have to be an accurate representation of his property boundary? If this is the case then he does not in fact own the land that we pass over so could not control our usage of it.

Section62

Easement12 said:

Interestingly, when I looked into planning history - I found that my neighbour has recently applied for planning permission for a small extension on his property. In the attached site plans, his ownership of the driveway does not extend as far as it would appear from his title plan. Is there any reason why these would differ? Does the site plan have to be an accurate representation of his property boundary? If this is the case then he does not in fact own the land that we pass over so could not control our usage of it.

See my previous posts about how people can own highway land.  The title plan may show parts of the highway owned by the neighbour, but they don't 'own' it in terms of controlling what other people do with it.

The site plan has to show the location and extent of the development - it doesn't have to extend to any property ownership outside the curtilage of the application site.  The site plans aren't a statement of property ownership - the chances are the architect assumed the site boundary was where the highway boundary is, and nobody bothered checking the accuracy vs the legal boundary.

For you, all that matters is whether the land you need to cross is highway.

Easement12

Regarding the highway, I have had confirmation today that we do have vehicle access over the highway (end strip of neighbours drive) - now as you say we just need to confirm that we only cross this highway and not his land.

If the site plan extends up to the point of the highway boundary then we are well clear of crossing his land. The question now is whether the site plan accurately reflects the highway boundary.

Section62

Easement12 said:

Regarding the highway, I have had confirmation today that we do have vehicle access over the highway (end strip of neighbours drive) - now as you say we just need to confirm that we only cross this highway and not his land.

If the site plan extends up to the point of the highway boundary then we are well clear of crossing his land. The question now is whether the site plan accurately reflects the highway boundary.

My strategy would be to keep on doing what you've been doing.  If the neighbour complains again then explain to them that your understanding is the land is highway.  If they take any steps (legal or practical) to stop you then go to the highway authority.

Ultimately it is for the highway authority (or a court) to determine the location of the highway boundary, not your neighbour.  Don't dwell on it yourself, it shouldn't be your problem.