County council and covenants

princeofpounds

This is potentially a more complex situation than it first appears.

Yes, the title plan may say it is your land. But that can have only a limited meaning if the land is burdened by obligations to other parties.

One way it could have obligations is due to another property having an easement over that land - essentially a right to use someone else's land. A right of way is a classic example. This is usually recorded in the title deeds but there are other methods of establishing an easement. This does not appear to be the case in this situation and I largely mention it for interest, but given prior use by neighbours it may become relevant later if someone claims one.

Another, potentially more relevant way land can be burdened is under highways law. Once land is part of a public highway, the authorities gain certain legal rights over it. This does not just include the driving surface - it can include other things like embankments and open splays for vision. Once highways have legally adopted land, the user of that land has remarkably few right over it, even though they don't stop being the legal owner. So a casual phrase like 'we want our land back' can have different meanings when it comes to precise legal justifications.

The person who visited you sounds rather unprofessional in their approach. I even doubted they were genuine but your subsequent conversation with them makes it a little more likely. Let's assume they are for now. Most likely, someone has complained about your encroachment onto land that highways believe they have adopted. The fact that you are on a corner plot makes this more likely, as it can lead to the blocking of sightlines which is generally opposed when it occurs (I know, the authorities rarely do anything about inappropriately parked cars doing the same...). But there could be other reasons, pointless to speculate too much until you know what the objection is. 

The point of me going through this is the fact that you own the land isn't necessarily that important. But you won't know that until you know what the actual claim is from the other side, if indeed it ever emerges.

The fact that another part of the council gave you permission to encroach and even assisted you may or may not have relevance. It depends on what the new objection is. There is a legal principle called estoppel, which means (crudely!) that a party can't change their mind about something they claimed earlier, which you relied upon. There is a possibility that is something your solicitor could consider if you do end up in legal dispute. But there are all sorts of conditions to satisfy for it to work, and highways law may supersede all of it.

Hope you have legal cover on your house insurance. You're probably best-off waiting for a letter, which may never arrive.

mscroft

user1977 said:

mscroft said:

newsgroupmonkey_ said:

So basically, even if they made you put it back, people can't park on it. It's still yours (although this would be a civil not criminal issue)

Even their own council website says they do not investigate breaches of covenants

Surely they mean breaches of covenants between landowners which don't include the council? They'll obviously have an interest in enforcing covenants where the council is the beneficiary.

It doesn’t specify…..just says they don’t investigate disputes over land between residents, or breaches of covenants

mscroft

There are no rights of way. I’ve read my legal pack back to front. And the restricted covenant, which is what I think this is, isn’t that clean cut either. As it states the no planting/building over only applies if the land is, or is intended to be, part of the highway. It’s not. The “service strip” (whether it is or isn’t) is now accessible. Before it was an overgrown dog toilet. And neighbours say the land has never been maintained, by the council or the previous owners. And what we’ve done with the area is no different to all the surrounding properties, who also have this service strip. When we rang the council guy the other day we mentioned that and he indicated that if they enforce it with us then yes, they will have to enforce it with all. In addition, it doesn’t affect anyones view of the road ect. I just hope it all goes away!

user1977

mscroft said:

user1977 said:

mscroft said:

newsgroupmonkey_ said:

So basically, even if they made you put it back, people can't park on it. It's still yours (although this would be a civil not criminal issue)

Even their own council website says they do not investigate breaches of covenants

Surely they mean breaches of covenants between landowners which don't include the council? They'll obviously have an interest in enforcing covenants where the council is the beneficiary.

It doesn’t specify…..just says they don’t investigate disputes over land between residents, or breaches of covenants

Yes, like I said they just mean they're not some sort of dispute resolution service between other parties. If the council is a party to the covenant in question then of course they can be involved (whether they want to actually bother enforcing it is a different question, but they're not going to make a blanket declaration that they're not going to enforce any of them).

Section62

mscroft said:

user1977 said:

mscroft said:

newsgroupmonkey_ said:

So basically, even if they made you put it back, people can't park on it. It's still yours (although this would be a civil not criminal issue)

Even their own council website says they do not investigate breaches of covenants

Surely they mean breaches of covenants between landowners which don't include the council? They'll obviously have an interest in enforcing covenants where the council is the beneficiary.

It doesn’t specify…..just says they don’t investigate disputes over land between residents, or breaches of covenants

They won't investigate on behalf of residents, but that doesn't mean they won't deal with issues that affect land owned by the council or used for highway purposes.

Local Authorities have a general legal duty to protect and preserve public property they are responsible for, and a specific legal duty to "assert and protect the rights of the public" to use and enjoy any highway they are highway authority for, which includes "roadside waste".  If the land in question is highway or roadside waste, or is necessary for the public to use and enjoy the adjacent highway, then the council must act, and if they fail to do so an aggrieved person may make a complaint to the Secretary of State.

A covenant giving a council rights over land is an asset of value, it shouldn't be disposed of without the council following a process defined in their standing orders and/or legislation.  And a council would potentially be acting unlawfully if it decided (on a blanket basis) not to deal with beaches of covenants it benefits from.

Section62

mscroft said:

When we rang the council guy the other day we mentioned that and he indicated that if they enforce it with us then yes, they will have to enforce it with all. In addition, it doesn’t affect anyones view of the road ect. I just hope it all goes away!

The bigger/more numerous the breaches, the harder it is for the council to just ignore it.

mscroft

I just can’t see how any of this is in the public interest. All but the neighbour who (we think) complained, have said our property and the surrounding area of the property has always been an eye sore. It’s now the complete opposite. We can see from our plans and deeds, 15 other properties have a service strip and all but 1 have planted trees, shrubs, laid gravel, 1 has included huge boulders around his perimeter to prevent parking. Even the property directly opposite ours has done exactly the same, it’s literally a mirror image. All of the properties are beautifully landscaped and maintained. I cannot see what the problem is. And if enforcement action is taken, I will report each and every vehicle that parks there. As that also breaches a covenant, as well as work vans, caravans, motor homes. Our title plan says we need to allow access to this area for maintenance, which they now have due to me removing all the overgrown trees and shrubs. It’s absolutely bonkers!

Section62

mscroft said:

I just can’t see how any of this is in the public interest.

A service strip is somewhere the statutory utility companies can place their equipment without the need for digging up the carriageway, or where not adjacent to a carriageway then somewhere for the equipment to go and to have access to it.

Traditionally the footway or verge of a highway was a principal place for utilitiy plant to be located.  On more modern developments the developers have opted not to provide footways, but to provide a service strip instead.

Do you know if there are utilities in the land already, or has it just been reserved for future use?

mscroft

It states, and mentions utilities but nothing runs along there. It mentions drains and the plan shows they do not run along this strip, but they are actually in our garden. From the legal pack, there’s nothing there but the lamp post which we agreed to keep. The council told us 2 years ago, when this was happening, that if we wanted we could have the lamp post removed all together. But as it’s a safety lamp post which is on all night, we agreed to keep it. We agreed to allow access if necessary, which of course we do. Incidentally, it’s about 6m long and around 1.5m wide. It’s sad as I’ve never tried to do anything unlawful. That’s why we contacted the council in the first instance. I’m just trying to work out what will happen next. The council official who came to our house says that we don’t need to do anything yet and wait to see the outcome. He sort of indicated that it wouldn’t be enforced, but they had to investigate. And they certainly didn’t want to take it up with all the other residents who have done the same. We’ve sent them our title plan and deeds, as well as the correspondence with the council when we told them our plans. If they do enforce it, it will cost me thousands to put it right. As it directly affects everything I’ve done/planted inside the garden fence.

Section62

mscroft said:

It states, and mentions utilities but nothing runs along there. It mentions drains and the plan shows they do not run along this strip, but they are actually in our garden. From the legal pack, there’s nothing there but the lamp post which we agreed to keep.

Bear in mind that services could be buried several feet down, certainly well below the depth people would normally dig.  Also that they won't necessarily come up in a search or in a legal pack.

mscroft said:

I’m just trying to work out what will happen next. The council official who came to our house says that we don’t need to do anything yet and wait to see the outcome. He sort of indicated that it wouldn’t be enforced, but they had to investigate. And they certainly didn’t want to take it up with all the other residents who have done the same. We’ve sent them our title plan and deeds, as well as the correspondence with the council when we told them our plans. If they do enforce it, it will cost me thousands to put it right. As it directly affects everything I’ve done/planted inside the garden fence.

I can understand why the council might prefer not to rock the boat, but as I suggested earlier in the thread, this approach would rely on the utility companies not needing to access the strip and nobody else kicking up a fuss.

In the meantime I would just wait to see if you get anything in writing from the council.  Bear in mind too that if the situation remains unresolved by the time you come to sell the property there is a risk of a buyer/buyer's solicitor querying what is going on with this strip of land and the non-compliance with the covenant.