Scaffolding on Right of Way

chrisw

swingaloo said:

I would just let them crack on with the job. You can only be sued if you are negligent in some way. If the builder or his actions hurt someone then he will be the one to sue. I think you are worrying needlessly

My thoughts exactly, for what it's worth.

propertyrental

Have you checked/confirmed that the builders/scaffolders have professional and/or public liability insurance>

35har1old

dottiec said:

"Why would the scaffolders or builders be any more likely to sue you than all the other people? I'd expect them to be held to a higher standard of watching where they're putting their feet... If anything, it's all the other passers-by who should cause you to consider having insurance."

The scaffolders and roofers are not more likely to sue than anyone else but they would be there at someone else's convenience, not mine, and I wonder why I should have to take that risk.  I am aware that it would be better for us to have insurance in place which I am looking into at the moment.  However, I shouldn't be forced into it and associated cost to suit someone else.  

I am equally concerned about the Health and Safety of others using an already restricted entrance.  Even more worrying is the gung ho attitude of the builder.

If he's so gung ho why is he using scaffolding 

stuhse

You have little to worry about; the laws of the land have evolved through the centuries such that as the owner of land which has a right of way you are not held responsible for people on that land or that lands maintenance to any particular standard.   For clarity you are the 'servient owner',  all the people with rights of way over that land are 'dominant owners'.

i believe its known as Halsburys laws....

Dominant owner's obligation to repair.
The dominant owner is not normally under an obligation to repair the subject matter of the easement Footnote 1. If, however, disrepair in the easement would cause actionable damage to the servient tenement the dominant owner may be practically obliged to maintain the easement to avoid causing a nuisance or trespass Footnote 2. If by reason of natural decay or other circumstances beyond the servient owner's control the servient tenement passes into such a condition that the easement becomes impossible to exercise, then a dominant owner who wishes to continue enjoying the easement must do all that is necessary to make the easement available and must bear all the expenses so arising Footnote 3. The dominant owner may not alter his mode of enjoyment of the easement by substituting a new easement if the existing easement becomes impossible to exercise; his remedy is to repair the existing easement Footnote 4.

Footnote 1 - 895. Liability and right to repair way.
As a general rule the owner of the servient tenement is under no liability to repair the way over which a right of way has been grantedFootnote 1, for such a liability is not a condition incident by law to the grant of a right of way; nor is it even a legal obligation incumbent on the granteeFootnote 2. The person entitled to the use of the way must do such repairs as he requiresFootnote 3, and has a right of entry upon the servient tenement for that purposeFootnote 4. The right of repair is not limited to making good the defects in the original soil by subsidence or other natural causes, but includes the right of making the road reasonably fit for the purpose for which it was grantedFootnote 5. He is not, however, entitled to make improvements which would benefit his own land to the detriment of the owner of the land over which the right of way is exercisedFootnote 6. The servient owner is not prevented from doing acts on his land the result of which may be to render the repair of the way more expensiveFootnote 7.

Footnote 2 - Ingram v Morecraft (1853) 33 Beav 49; Jones v Pritchard [1908] 1 Ch 630 at 638 per Parker J; Duke of Westminster v Guild [1985] QB 688, [1984] 3 All ER 144, CA. See also Gardner v Davis [1999] EHLR 13, [1998] 29 LS Gaz R 28, CA (dominant owner did not have a defence, by virtue of his easement of drainage, to a nuisance claim by the servient owner concerning raw sewage flooding the servient land where the septic tank was inadequate to cope with the increase in water usage due to modern day use).

Footnote 3 - 894. Construction of way.
In general the grantor of a right of way is under no liability to construct the wayFootnote 1. The grantee of a right of way has a right to enter upon the grantor's land over which the way extends for the purpose of making the grant effectiveFootnote 2. Thus, if a right of way for carriages is granted over a field to the grantee's house, the grantee may enter the field and make over it a formed roadway suitable for supporting the ordinary traffic of a carriagewayFootnote 3, but the grantee may only construct such a way as is suitable to the right granted himFootnote 4, and the necessary works must be executed in a reasonable manner and with ordinary skill and prudenceFootnote 5. The methods of construction which the grantee may employ are not confined to the methods existing at the time of the grantFootnote 6.

Footnote 4 - 892. Way becoming impassable.
If the way has become impassable from some cause other than the act of the servient owner the dominant owner is not entitled to deviateFootnote 1, even over land belonging to the grantor of the wayFootnote 2.

thegreenone

Slightly confused with Stuhse's reply above.  We live in a private road and we are liable for any accident in the road, to someone who is not resident.  We have a road committee, not relevant here, and our liability insurance is about £250 per year for 25 houses. 

@dottiec    When PP was granted for the Beauty Salon, did the builder provide a management plan?  Where do the builders park? Where will the clients park?    Road access for fire engines and ambulances must be maintained and if the builder cannot guarantee that, you should refuse.  It's your private property, he and the Beauty Salon owner will have to have a rethink. 

Edited to add:  we're in a similar position where a former newsagent shop at the bottom of our road is being developed into five flats with just five parking spaces, all opening onto our road.  The difficulty we have is that the opening is onto council road, which 10 feet away becomes our private cul-de-sac.

dottiec

thegreenone said:

Slightly confused with Stuhse's reply above.  We live in a private road and we are liable for any accident in the road, to someone who is not resident.  We have a road committee, not relevant here, and our liability insurance is about £250 per year for 25 houses. 

@dottiec    When PP was granted for the Beauty Salon, did the builder provide a management plan?  Where do the builders park? Where will the clients park?    Road access for fire engines and ambulances must be maintained and if the builder cannot guarantee that, you should refuse.  It's your private property, he and the Beauty Salon owner will have to have a rethink. 

Edited to add:  we're in a similar position where a former newsagent shop at the bottom of our road is being developed into five flats with just five parking spaces, all opening onto our road.  The difficulty we have is that the opening is onto council road, which 10 feet away becomes our private cul-de-sac.

Hi Thank you for your email.  We bought our home and developed two plots one of which we sold and we built on the other, which I project managed - there was no road at the time.  Our property and the 2 new builds had a covenant to pay one third cost each of laying a substantial roadway.  The whole process was complicated and involved Planning, neighbours, utilities etc and from my point of view it was an enjoyable challenge and we had a great builder whilst I organised the trades.  What I failed to see in all of this was the need to do what you have done and set up a residents association for future care and maintenance of the road so it has basically fallen on me - entirely my fault.

We are in a conservation area and I did mention to the builder that he might need Planning permission to change the window on the front of the property but he just shrugged it off.  In fact this is where it has gone wrong.  He could have avoided all of this by doing a very very simple Management Plan as you have suggested.  He has his plans in his head and thinks they are somehow being telepathetically relayed to me when I had no idea of how involved the renovation would be.  I am going to arrange a site meeting with him to establish what risk assessment he has done and also request a scaffolding plan.  

It would be helpful if you could let me know the insurance company you are with for your private road.  I am going to attempt to upload a photo of the entrance - not a brilliant photo but I don't want to identify our location.

Your email was most welcome.

user1977

stuhse said:

You have little to worry about; the laws of the land have evolved through the centuries such that as the owner of land which has a right of way you are not held responsible for people on that land or that lands maintenance to any particular standard.   For clarity you are the 'servient owner',  all the people with rights of way over that land are 'dominant owners'.

No, "dominant owners" are the owners of any properties which have a right of way. Your links are about the obligations of maintenance where e.g. a house has a right of way up a track owned by the neighbouring farmer, and whether the farmer has an obligation to the owners of the house to fix the track. Nothing to do with claims for slips and trips by third parties.

swingaloo

I cant help but think that you are getting far more involved than you have a right to be. Its fine being concerned about your road but the rest of the builder/property owners plans are noting to do with you really.  Why would he have to consult you on  how involved the renovation will be. 

dottiec

swingaloo said:

I cant help but think that you are getting far more involved than you have a right to be. Its fine being concerned about your road but the rest of the builder/property owners plans are noting to do with you really.  Why would he have to consult you on  how involved the renovation will be. 

Mainly because he needs my permission and the residents need reassurance that they will be able to enter and exit the site in their vehicles.   I have already given him permission to park a skip on the only spare piece of land available, mainly to avoid him putting it on the main which would cause a further hazard.  Ok he can get a Court Order but in my view our entrance is so restricted he would be instructed to either use a mobile scaffold unit, or find another way of placing the scaffold which may be much more expensive.  I have no idea how he intends to place the scaffolding in order to not obstruct access, so I have asked to meet him on site and hopefully iron these things out.  

I am happy to admit over thinking things if that turns out to be the case.  

I shall try and upload a photo which I think will help.

BarelySentientAI

dottiec said:

swingaloo said:

I cant help but think that you are getting far more involved than you have a right to be. Its fine being concerned about your road but the rest of the builder/property owners plans are noting to do with you really.  Why would he have to consult you on  how involved the renovation will be. 

Mainly because he needs my permission and the residents need reassurance that they will be able to enter and exit the site in their vehicles.   I have already given him permission to park a skip on the only spare piece of land available, mainly to avoid him putting it on the main which would cause a further hazard.  Ok he can get a Court Order but in my view our entrance is so restricted he would be instructed to either use a mobile scaffold unit, or find another way of placing the scaffold which may be much more expensive.  I have no idea how he intends to place the scaffolding in order to not obstruct access, so I have asked to meet him on site and hopefully iron these things out.  

I am happy to admit over thinking things if that turns out to be the case.  

I shall try and upload a photo which I think will help.

What swingaloo is saying (I think) is that you appeared to be wanting complete consultation about the scope and scale of the refurbishment - worrying about the overall plans when you "had no idea how involved the renovation would be" is way out of scope for your involvement.

Asking how he intends to place the scaffolding is completely fine, but demanding management plans, site risk assessments for anything other than the scaffolding/access, details of parking arrangements for salon clients etc is overstepping and at risk of causing unnecessary conflict.