Shared private roads costs without consultation

s1kkpara

Hi, I Live on a private road, in Scotland,that my title deeds say I am due 50% of maintenance costs with the other farmhouse.( deeds from sale by Duke of Argyll about year 1960)

Recently someone that has gained permission to build two other houses on the road. Part of their planning permission says they have to build 4 lay-bys And resurface the road prior to construction starting.

He has selected and hired the contractor To do the work specified in his planning permission.

He never had any consultation with us about costs And is now telling us that we are due share of maintenance cost.

we have never seen any of the three quotes he supposedly obtained.

with local knowledge, I would never have used the contractor he has decided to use either.

we have Never agreed to the work being done, or to what standard that has to be done. This was specified in his planning permission!

he has damaged the road putting in laybuys and removing tons of concrete from his proposed sites.

I feel that since the road improvement is part of his planning permission it should be at his cost. 

I did not need the road improved and in past years have cleared any of the ditches myself and filled potholes as has the other farm. When it did need repaired, the other farm and ourselves split the bill in half, as per the deeds.

i have also said that in the future, when the works prescribed by the planning permission are finished I would be happy to pay 25% of any maintenance costs as there would be four frontages

I’ve also  been informed that he is now only planning to repair the road in order to build his houses and then resurface the road when he’s finished . This is contrary to his planning permission, but I will have to check and see if that is changed.

(I can See the sense in temporarily repairing the road to allow construction and then resurfacing it to the level described in the planning, as this means that the builders will not damage the new surface.
 however I do not feel that I should have to pay for this as if he was to resurface it as per his Planning permission he would also be filling the port holes at the same time many of which his works have created)

any help would be appreciated, thank you

BonaDea

Sounds to me like you need some proper legal advice.

user1977

"Maintenance" doesn't include upgrading. Who owns the road?

Schwarzwald

Important to document your exchange in writing including your request to do a proper consultation before any works and/or costs are incurred (by the sounds he only chose contractor but works havent started yet).

comeandgo

I agree with user 1977, what is happening is not maintenance.  Get yourself a lawyer to write to the developer/ builder.  Do you have legal cover with your house insurance?  

ThisIsWeird

s1kkpara said:

Hi, I Live on a private road, in Scotland,that my title deeds say I am due 50% of maintenance costs with the other farmhouse.( deeds from sale by Duke of Argyll about year 1960)

Recently someone that has gained permission to build two other houses on the road. Part of their planning permission says they have to build 4 lay-bys And resurface the road prior to construction starting.

Not familiar with Scottish Planning, but afaIk in England 'Planning Permission' is just that - the LA's Planning Dept is giving their permission for works to proceed as much as it affects them and conforms to their Planning requirements - limits on dimensions, proximity to boundaries, over-development, street-scene, etc. They do NOT look into legalities such as deeds, or even who owns the land. As someone on here (S62?) keeps pointing out, you could request PP to build a garage in your neighbour's garden, and the LA would say 'yes' provided it conforms with their Planning requirements. The fact that it's on someone else's property means nothing to them - and obviously it doesn't give permission to build on other folk's land. Ownership and entitlement are completely separate issues that the PD do not become involved in.

If the situation in Scotland is the same, then the fact these folk have been given PP for modifying this road, along with caveats and requirements, does NOT necessarily mean that they actually have legal permission to do so. The 'legalities' is a different matter entirely, and if the road does not belong to the applicant, or if they do not have some easement or entitlement over it, then they simply cannot do this.

So, first thing - who does this 'private' road belong to, and what rights - if any - do anyone else have to use it? The occupants of the other farmhouse - what do their deeds say, and what do they think of this?

That's one issue, and I suggest you check that out if you haven't already done so.

The other issue is one of what's reasonable here. Simply put - provided this person has legal permission to upgrade this road for their new houses, then this work should be done entirely at their expense. Thereafter, the maintenance should be split 4 ways. Imo.

eddddy

s1kkpara said:

I Live on a private road, in Scotland,that my title deeds say I am due 50% of maintenance costs with the other farmhouse.( deeds from sale by Duke of Argyll about year 1960)

If things work in Scotland in a similar way to they generally work in England, I would think the things to investigate include...

• Who actually owns the road? (Is the road still owned by the Duke of Argyll?)

• And according to your deeds, who is required to maintain the road? And, therefore, who do the deeds say you should pay 50% of maintenance costs to?

• Presumably, the 'developer' has got appropriate consent from whoever owns the road to use the road as access the new houses.

• And presumably, the 'developer' has got consent from the road's owner to do work on the road.

• (The 'developer' may have planning consent which requires improving the road etc, but the 'developer' still needs the road owner's permission to use the road or do any work on it.)

• Or is the 'developer' also the owner of the road?

Your deeds would be the legal contract saying what you have to pay for, and who you have to pay it to. So it's a case of carefully reading those deeds, to see if they require you to pay this bill.

And as others say, improving / upgrading the road isn't the same as maintaining the road.

Section62

ThisIsWeird said:

...As someone on here (S62?) keeps pointing out, you could request PP to build a garage in your neighbour's garden, and the LA would say 'yes' provided it conforms with their Planning requirements. The fact that it's on someone else's property means nothing to them - and obviously it doesn't give permission to build on other folk's land. Ownership and entitlement are completely separate issues that the PD do not become involved in.

To an extent, but not totally.

One of the material factors Local Planning Authorities have to consider is the probability of the development being carried out - they shouldn't give consent for something which has zero chance of ever being done.  If the land required to complete the development is not available and there isn't a clear path to how it might become available, then consent should probably be refused.

In the OP's specific case (speaking as if it were in England, I don't know if Scotland is different) then if the developer doesn't have a right to use the access road and therefore the properties would be landlocked then consent shouldn't be given, or given subject to conditions requiring the access to be put in place first.

This is one of the reasons why there is a specific requirement to notify the owners/occupiers of land if you submit a planning application for land which doesn't belong to you - it gives the owners/occupiers of the land the opportunity to make representations to the effect 'this will never happen' which the planning authority could take into account when deciding the application.

Logically you'd normally resurface an access road after the bulk of the construction has been finished, as there is no point having your newly surface road wrecked by lorries and plant.  However, in this case, there is an argument that providing the passing places first is important to minimise inconvenience to other users of the road.

But I'd speculate that the condition requiring the developer to improve and resurface the road before construction of the development starts might be there primarily to stop the houses being built if the access arrangements haven't been sorted.  The developer cannot improve/modify the road without the consent of the owner(s), so would need to locate them and negotiate (access rights and) permission to improve before doing any housebuilding - in effect this would be the private road equivalent of a planning condition requiring a S106/S38 agreement which would be used if the road was public.

The key is finding out who owns the road, and what rights (if any) the development land has to use/improve the road without the agreement of the OP and the other farm.

Titus_Wadd

I know zero about Scottish land law, but would agree with S62's questions.  How has the developer acquired a right to use the road, other than to call at yours or the other farmhouse?  Has he bought adjoining land which comes with rights to use the existing road?  in addition to access rights for the new houses, has the builder legally acquired a "share" in the maintenance of the road; i.e. that he can "join in " with the existing arrangement between the existing two houses?

Our house was the first and only other house sold on an existing private road with access to another existing house.  6 houses were planned with a right of way granted to each, along with a requirement to share maintenance costs.  With 5 more houses the % would be shared between all the houses.  When the builder/management company billed us for >£4k one year my solicitor argued that, as the road was not yet laid there was no "maintenance" due and they backed down. (the builder is a chancer!)

There's very little chance that "our" road will ever be resurfaced because rather than selling the new builds the builder has put tenants in them, meaning he is responsible for the lion's share of any maintenance.  He's a cheap-skate and as long as he can con tenants to believe he'll finish the road and the rest of the site requirements under the planning permission, he has no incentive to lay the road properly.

OP, I hope you get to the bottom of it, and please post what happens or any outcome.

s1kkpara

Thank you for all the responses!
when the farmhouse I live is was sold to us(my father originally bought it) the farm steading was split in two, though no new paperwork was drawn up( that I know of) as the other part of the site was left derelict until recently.

the deeds say we pay 50/50 with other farm on road. 

I’ve already taken on a lawyer and will check out ownership!

our feeling was always that the improvement was his deal with planning and so his responsibility.

a temporary fix to allow building would make sense but if he’s decided to do that instead of what he agreed with planning that’s his problem, not maintenance!

thanks