Builder able to cross my land?

davemorton

There is a patch of land in front of my home and a builder has submitted a planning application to build on said land.  The road in front of my home is unadopted, and owned by myself, but the builder is planning on using that road for the new residents (and obviously construction traffic) to enter the site. If there was a right of way/passage over this road, would it be listed on my title deeds, or would I also have to check the land he is planning on building on? TIA

BarelySentientAI

It could be on both, but sometimes isn't.

You should check his title as well.

RHemmings

This really seems to be a situation where proper legal advice would be important. 

Do you (OP) have an agreement with the builder? Anything signed? 

There is something called an easement of necessity. Where, even if you own the road, if other houses have to use your land (the road) to access the public roads, then it MIGHT be the case that legally they can. And, such an easement might not have to be written into the deeds. But, I am am not a lawyer and this is not legal advice. 

I'm not saying that this will apply in your case - there are far too few details and as I said I am not a lawyer. 

user1977

Have you looked at your title deeds? and/or revisited the advice you got from your solicitor when you bought. Is it reasonably obvious that the plot would need to use "your" road for access, or does this seem unexpected? Might help if we could see the layout (and any titles).

tacpot12

If you have Home Insurance, you might have Legal Expenses cover, and so can call the Legal Helpline provided by your insurer. This seems like the sort of thing they would help with in terms of advising what the current situation is, e.g. can the builder cross your land and what options do you have if you want to stop them. I expect that the cost of an injunction if required would be covered by any legal expenses cover. If you want to make any sort of change to the access arrangements, including formalising any agreement with the builder, you will need to pay for a solicitor. 

davemorton

user1977 said:

Have you looked at your title deeds? and/or revisited the advice you got from your solicitor when you bought. Is it reasonably obvious that the plot would need to use "your" road for access, or does this seem unexpected? Might help if we could see the layout (and any titles).

The original planning application submitted to the council had the entrance elsewhere, but the majority of the objections were due to the entrance not being safe and not meeting regulations, so they have just recently amended their plans and have the entrance via my road.  Another concern would be damage done to the road by the construction traffic.  I will try to post titles later. 

Bookworm105

as explained on the Land registry website, it is the wording in your deeds that matters when it comes to "roads" shown within the red line on the title plan denoting what you own

the words will say if there is an implied right of access across a "private" road or not, and as others advise, see what the deeds for the bit of land say about right of access to it

if the builder has obtained planning permission then it is inconceivable that the council would have granted development of a land locked site since they would know the road is not adopted.
Were you not aware of the planning application at the time, did you not object then?

davemorton

Bookworm105 said:

as explained on the Land registry website, it is the wording in your deeds that matters when it comes to "roads" shown within the red line on the title plan denoting what you own

the words will say if there is an implied right of access across a "private" road or not, and as others advise, see what the deeds for the bit of land say about right of access to it

if the builder has obtained planning permission then it is inconceivable that the council would have granted development of a land locked site since they would know the road is not adopted.
Were you not aware of the planning application at the time, did you not object then?

Yes, I was aware, and did object, but that was when they were proposing using a different entrance.  The online option of objecting closed a couple of months ago, and now they have changed the access route.  
The following is all I can see on my deeds.....

(1) That the Purchaser will keep the Vendors

effectually indemnified against all claims by the

tenants for compensation under the Agricultural

Holdings Act 1948 or otherwise in respect of the

land hereby conveyed

(2) That the Purchaser will forthwith at his own

expense and to the satisfaction of the agent for the

time being of the Vendors properly fence off the

land hereby conveyed from the adjoining lands of

the Vendors and provide all necessary entrances

and gates and will thereafter keep the said fences

entrances and gates in good and substantial repair

(3) That the Purchaser will at his own expense

repair and make good any damage done by building

or other operations on the land hereby conveyed to

field drains sewers or water pipes lying in or under

the land hereby conveyed but used in connection

with other lands of the Vendors

(4) That the Purchaser will at his own expense

execute and do all such works and things as any

competent authority may lawfully require the

purchaser of the Vendors to execute or do on or in

connection with the land hereby conveyed or the

whole of the roads or streets adjoining or abutting

thereon or the sewers used in connection therwith

and will keep the Vendors fully and effectually

indemnified from and against all liability in respect

of any such requirements notwithstanding that

such roads or streets and sewers abut or adjoin any

property belonging to the Vendors

(5) That no part of the land hereby conveyed or of

any building already standing or hereafter erected

thereon shall be used for any purpose other than a

private dwellinghouse and that no window or door

thereof shall open out over the adjoining lands of

the Vendors

(6) The Purchaser will leave open and unbuilt that

part of the land hereby conveyed which is coloured

blue on te said plan and will not build thereon

without the previous written permission of the

Vendors or their Agent. Such written permission

will not be unreasonably refused, but the Purchaser

will pay in addition to the purchase price herein

mentioned an additional sum of Four hundred

pounds for each house built on the said piece of

land coloured blue for which written permission to

build is given by the Vendors.

Bookworm105

so maintaining access (gates) to the land is at your cost but there is no direct mention of right of passage over the land outside such gate 

the wording however clearly implies that existing gates and fences would mean there was a pre-existing "route" to and from the gate. At what point custom and practice of where they dove on what is now your land becomes a formal right of passage is a matter for professional legal advice. Has the builder actually bought the land, or are they just its developer? Transferring right of passage may not automatically follow the change of owner if the right is not documented.

are you now saying that objections to the variation of the original granted permission are also out of time?

Section62

Bookworm105 said:

....

if the builder has obtained planning permission then it is inconceivable that the council would have granted development of a land locked site since they would know the road is not adopted.
Were you not aware of the planning application at the time, did you not object then?

The planners won't necessarily (i.e. almost certainly not) do their own research to know whether the applicant has a right of access over the adjoining land - they largely rely on what the applicant says, because it is possible there is a commercial arrangement being put in place even if the RoW doesn't currently exist.

The planners don't mind if the RoW doesn't already exist because the development will (should) be conditional on the access being provided as per the approved plans.  If the RoW doesn't exist and cannot be obtained by agreement then the developer would be in breach if they proceed.

In an ideal world the planners would want some level of assurance the development can be built according to the plans (because there is no point in granting consent for something that cannot be built) but the application has to be viewed on its own merits and if the developer gives sufficient assurance that a right of access can be obtained then the planners won't refuse the application.

It is not at all uncommon for applications to be granted where a right of access is still in doubt.

That said, the applicant has to notify the owner(s) of land on which a planning application is being made (unless they own all the land) and submit an 'ownership certificate'.  If the applicant doesn't own the OP's 'road' then this process would have to be followed in order for the application to be valid.  AIUI if the details of the application change (e.g. as in this case) then a revised 'ownership certificate' has to be submitted.  Bottom line - the owner of land should be aware that a planning application has been submitted for that land, and can kick up a fuss if they haven't been.

davemorton

Bookworm105 said:

so maintaining access (gates) to the land is at your cost but there is no direct mention of right of passage over the land outside such gate 

the wording however clearly implies that existing gates and fences would mean there was a pre-existing "route" to and from the gate. At what point custom and practice of where they dove on what is now your land becomes a formal right of passage is a matter for professional legal advice. Has the builder actually bought the land, or are they just its developer? Transferring right of passage may not automatically follow the change of owner if the right is not documented.

are you now saying that objections to the variation of the original granted permission are also out of time?

Yes, objections are now out of time, but received a new letter from the council saying about the plans. It did say I could call the planning officer dealing with the case, but the chance to object online seems to be closed.