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  • FIRST POST
    • ozgi
    • By ozgi 14th May 18, 12:57 AM
    • 11Posts
    • 4Thanks
    ozgi
    Garden Grabbing Developer Possibly Stealing Unadopted Road - Is This Permissible?
    • #1
    • 14th May 18, 12:57 AM
    Garden Grabbing Developer Possibly Stealing Unadopted Road - Is This Permissible? 14th May 18 at 12:57 AM
    Hello all

    Question about a developer 'repurposing' an unadopted dirt track without permission here if you wouldn't mind:

    Myself and 48 of my neighbours are currently fighting a war of attrition against a garden grabbing developer who have been trying unsuccessfully for 3 years to gain planning to build a small housing estate at the end of our peaceful 1930's suburban London cul de sac.

    Effectively they wanted to bulldoze 2 1930's semis with very big gardens and build 25 new properties on the land.

    Since early 2015 we have defeated 3 different applications & their relevant appeals, it's been heard before 2 Central government departments who both agreed with the objections and we have our MP on our side being very helpful - overall we have done a pretty good job so far of keeping them at bay.

    One of the main points within their various plans that the council found objectionable is that demolishing this adjoining pair of original 1903's semi's would negatively affect the character of the road - in short it would look really stupid and out of place in a road that has no buildings other than 1930's bay fronted houses.

    In what seems to be their last gasp attempt the developers latest planning application (number 4 now) involves retaining the 2 houses in question exactly as they are now but bulldozing their gardens to build a smaller development of 6 new homes with garages. The problem is there is no proprietary access to this currently-garden site if the 2 x 1930's houses out front are retained. Its completely encircled by other houses, gardens and a railway line.

    The developers way of getting around this now is that they intend to tarmac a 20m strip of a very narrow (less than 4m wide), existing, unadopted, single lane dirt track access road next to one of the houses. The track is not owned by any property according to Land Registry, and has been used by all of the houses on that side of the cul de sac since 1930 for access to the rear of their houses since they were built! The track is frequently used by neighbours and there will be no question of it being disused or unnecessary etc.

    I have verified that this road is not on the deeds of the property in question and Land Registry have not yet been able to tell me who does actually own it - if anyone. I expect the owner was the original (now long-gone) small time developer in the 1930's who bought the land off the local landowner, but did not include it in the deeds to any of the houses it built and sold. Goodness knows who owns the assets of this defunct entity now...

    My question is this - are these garden grabbers now allowed to tarmac this unadopted track that we all use, and repurpose it as the sole access to a development of a 6 house estate in this way without actually owning it?

    I'm not implying at this stage that they are claiming ownership or that they will stop the rest of us using the road afterwards, but can they just go ahead and temporarily shut it off for a few days / weeks in order to tarmac around 20 metres of it and then increase its usual daily traffic 30 to 40-fold?

    Im looking for legal opinion / facts here, not so much opinions on the Planning aspects / arguments.

    Many thanks in advance
Page 1
    • anselld
    • By anselld 14th May 18, 6:21 AM
    • 5,962 Posts
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    anselld
    • #2
    • 14th May 18, 6:21 AM
    • #2
    • 14th May 18, 6:21 AM
    Without a current land owned the only thing that can stop them is the Planning aspects - narrow access, lack of turning, parking, exit to the main highway, etc.
    • CO NO
    • By CO NO 14th May 18, 6:28 AM
    • 10 Posts
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    CO NO
    • #3
    • 14th May 18, 6:28 AM
    • #3
    • 14th May 18, 6:28 AM
    Have everbody checked their deeds to see if there is amything in them that would bear on the unadopted access?
    • Browntoa
    • By Browntoa 14th May 18, 6:50 AM
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    Browntoa
    • #4
    • 14th May 18, 6:50 AM
    • #4
    • 14th May 18, 6:50 AM
    Basic things like refuse lorries turning or accessing the new houses
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    • Tiglet2
    • By Tiglet2 14th May 18, 7:12 AM
    • 263 Posts
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    Tiglet2
    • #5
    • 14th May 18, 7:12 AM
    • #5
    • 14th May 18, 7:12 AM
    As a starting point, can you do a Map Search of the area to check whether this piece of land has a title number? If it does, then download the deeds for it for details of the registered proprietor. If there is no title number, then it does sound like the road/pathway is unadopted, athough it may be that the houses which use this road to access their gardens have rights to pass and repass over this area by foot, but not by vehicular.
    • da_rule
    • By da_rule 14th May 18, 8:18 AM
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    da_rule
    • #6
    • 14th May 18, 8:18 AM
    • #6
    • 14th May 18, 8:18 AM
    Ask the Local Authority to provide a highways plan for the area. It may be that although it is I adopted itnis still classified as public highway. The Local Authority in its role as a Highways Authority has vairous powers in relation to unadopted public highway, including carrying out improvement or repair works or authorising them to be done (by the developer for example).

    Also, if the land isn!!!8217;t registered there is still an owner somewhere. It may be that the developer has identified the owner and is either purchasing the land or has come to an agreement. There are search companies and legal forms out there that specialise in locating owners of unregistered land.

    As has been said, it might be worth checking the deeds of the properties that use this road to see what rights (if any) you have over the road.
    • DCFC79
    • By DCFC79 14th May 18, 8:25 AM
    • 32,919 Posts
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    DCFC79
    • #7
    • 14th May 18, 8:25 AM
    • #7
    • 14th May 18, 8:25 AM
    If you want legal advice you should pay for it.
    • davidmcn
    • By davidmcn 14th May 18, 8:34 AM
    • 9,075 Posts
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    davidmcn
    • #8
    • 14th May 18, 8:34 AM
    • #8
    • 14th May 18, 8:34 AM
    As above, just because it's unregistered doesn't mean the developers haven't acquired it - and it would seem unlikely for them to take a chance.

    In any event, I doubt you can stop them unless you're the owner of the land in question. As for temporarily being unable to use the road, even if you have access rights, I doubt that lets you veto the owner carrying out maintenance - it's got to be resurfaced some time, right?

    (and for the avoidance of doubt, none of this is relevant in terms of planning objections etc)
    Last edited by davidmcn; 14-05-2018 at 9:05 AM.
    • KittenChops
    • By KittenChops 14th May 18, 10:30 AM
    • 140 Posts
    • 90 Thanks
    KittenChops
    • #9
    • 14th May 18, 10:30 AM
    • #9
    • 14th May 18, 10:30 AM
    Basic things like refuse lorries turning or accessing the new houses
    Originally posted by Browntoa
    http://www.kentonline.co.uk/maidstone/news/lorry-gets-stuck-trying-to-enter-windmill-lane-182641/
    "When Maidstone council's planning committee considered an application to build 10 homes off Windmill Lane in Hollingbourne at the end of April, villagers warned that the narrow, privately owned track was not suitable for heavy traffic...."
    • ozgi
    • By ozgi 14th May 18, 11:32 AM
    • 11 Posts
    • 4 Thanks
    ozgi
    If you want legal advice you should pay for it.
    Originally posted by DCFC79

    Wow, what a super helpful response on a forum where people ask questions and get answers of the users

    Please don't bother next time pal
    • ozgi
    • By ozgi 14th May 18, 11:38 AM
    • 11 Posts
    • 4 Thanks
    ozgi
    Thanks to everyone else for their opinions.

    There are no transactions as yet on Land Registry for the title to the road in question, but I will ask them to find a highways plan if such exists

    The titles of the houses do not mention this service road sadly. I think it has simply been forgotten by the developers since they went bust

    As far as planning goes - there are many and varied ways we can attack this particular part of the new proposal - width, its a tight blind turning, accidents will inevitably happen etc, but it was more whether there is any legal avenues to stop this access road being closed off and resurfaced given that it has been used by the original houses on a daily basis for many many years.
    • ozgi
    • By ozgi 14th May 18, 11:43 AM
    • 11 Posts
    • 4 Thanks
    ozgi
    As a starting point, can you do a Map Search of the area to check whether this piece of land has a title number? If it does, then download the deeds for it for details of the registered proprietor. If there is no title number, then it does sound like the road/pathway is unadopted, athough it may be that the houses which use this road to access their gardens have rights to pass and repass over this area by foot, but not by vehicular.
    Originally posted by Tiglet2
    Tried this and there is no title number. I'm fairly certain it's Unadopted as per the original post.

    Why does this imply no vehicular access? The road was built in 1936 when many had cars, carts, wheelbarrows etc.

    Also if not a vehicular access road surely this applies to all users, including our developer friends?!
    • getmore4less
    • By getmore4less 14th May 18, 11:54 AM
    • 33,476 Posts
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    getmore4less
    Find out if anyone has a full set of deeds going back to the time they were build, that should trace the land ownership and how it was split up.
    • davidmcn
    • By davidmcn 14th May 18, 11:57 AM
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    davidmcn
    Also if not a vehicular access road surely this applies to all users, including our developer friends?!
    Originally posted by ozgi
    If they own it they can do what they like with it (subject to planning).
    • ProDave
    • By ProDave 14th May 18, 12:20 PM
    • 1,118 Posts
    • 1,352 Thanks
    ProDave
    WHO says tarmacing the track to give access to the new houses would stop the existing houses continuing to use it as well?

    Sometimes in a situation like this it is best to "allow" a less bad scheme. They are talking of 6 new houses now, not 25. This is just like in a village I used to live, and the proposal was for a lot of houses then a few less etc, until it got to a proposal for 5 houses and the head of the Parish council stood up at the public meeting and said "For heavens sake let them build these 5 houses it is infinitely better than any scheme proposed before"

    They might find selling the houses difficult as they may not come with a watertight right of access, but that is their problem.
    • Richard Webster
    • By Richard Webster 14th May 18, 12:26 PM
    • 7,465 Posts
    • 7,194 Thanks
    Richard Webster
    If you have a right to use this track then the two nearby plots they have bought probably have that right as well. As has been suggested the land where the track is probably belonged to the original 1930s developer so unless he can be traced and is still alive or if a company it is still in existence, then it is very unlikely the true owner of the land can be found.

    It is almost impossible to obtain a possessory title over an accessway as nobody would be able to show that they had exclusive use of it and made this clear to others - by fencing it in. So although the developer might not actually own the access are I can't see anyone can use land ownership etc to stop the work.

    Arguably laying a tarmac surface could require planning permission - this is a point I'm not sure on as I am not up to date with the minutiae of planning law now, having retired, but it may be worth checking with the Council if that building or engineering operation would require planning permission. If it would and it has not been given then possibly the Council might take enforcement action, if they felt it was expedient to do so.
    RICHARD WEBSTER

    As a retired conveyancing solicitor I believe the information given in the post to be useful assuming any properties concerned are in England/Wales but I accept no liability for it.
    • ozgi
    • By ozgi 14th May 18, 1:52 PM
    • 11 Posts
    • 4 Thanks
    ozgi
    WHO says tarmacing the track to give access to the new houses would stop the existing houses continuing to use it as well?

    .
    Originally posted by ProDave
    To turn a dirt track info a decent tarmac road for high spec houses will take at least 6-10 days.

    During these 6-10 days there will be no access to the road as it will be a pile of rubble / wet tarmac / road rollers etc.

    By tarmacking it the developer is in effect removing our established access to this road for that short period of time.
    • ozgi
    • By ozgi 14th May 18, 1:55 PM
    • 11 Posts
    • 4 Thanks
    ozgi
    If you have a right to use this track then the two nearby plots they have bought probably have that right as well. As has been suggested the land where the track is probably belonged to the original 1930s developer so unless he can be traced and is still alive or if a company it is still in existence, then it is very unlikely the true owner of the land can be found.

    It is almost impossible to obtain a possessory title over an accessway as nobody would be able to show that they had exclusive use of it and made this clear to others - by fencing it in. So although the developer might not actually own the access are I can't see anyone can use land ownership etc to stop the work.

    Arguably laying a tarmac surface could require planning permission - this is a point I'm not sure on as I am not up to date with the minutiae of planning law now, having retired, but it may be worth checking with the Council if that building or engineering operation would require planning permission. If it would and it has not been given then possibly the Council might take enforcement action, if they felt it was expedient to do so.
    Originally posted by Richard Webster
    This is very useful thanks
    • TonyMMM
    • By TonyMMM 14th May 18, 2:02 PM
    • 2,763 Posts
    • 3,101 Thanks
    TonyMMM
    Roads get closed all the time for maintenance, roadworks and resurfacing .... trying to defeat a planning application on the basis of you being inconvenienced for a few days is looking a bit desperate. It doesn't sound like this is your only access route, just a way to the back of your houses, which makes any argument even less effective.

    Concentrate on objections based on proper planning issues to frame your case, and as mentioned above, consider that some sort of development of the site may be inevitable, so try and get the least damaging outcome for you.
    • davidmcn
    • By davidmcn 14th May 18, 2:05 PM
    • 9,075 Posts
    • 9,662 Thanks
    davidmcn
    To turn a dirt track info a decent tarmac road for high spec houses will take at least 6-10 days.

    During these 6-10 days there will be no access to the road as it will be a pile of rubble / wet tarmac / road rollers etc.

    By tarmacking it the developer is in effect removing our established access to this road for that short period of time.
    Originally posted by ozgi
    Yes, but like I said above, it's inevitable that the road will need maintained at some point and that it will be out of action. I doubt that having a right of access entitles you to object to the owner improving the road.
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