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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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We own a commercial yard that has access across someone elses

Resolved Question:

We own a commercial yard that has access across someone else's land. this individual has obtained planning permission for a development that requires our access to be re-routed via a new track. This variation was agreed in principle by our late mother subject to its being completed to her satisfaction. Our mum died before the track was signed off since it had not been completed at the time of her death.

Due to our sense that the new track was going to be used to limit our commercial access we were advised by the solicitor who dealt with the original agreement that we could rescind it which we did. Having elected to keep our existing access the developer has now built his new track which he has barred us from using with the exemption of the part of this track which rejoins our existing access at as it nears our yard at the far end.

The developer has now told us that this section of shared access track has only been constructed to take vehicles up to 3.5 ton and that we are not to drive anything over this weight on this end section of track. After some difficulty locating the planning permission of the developer we eventually found out that he had classed our property as residential in his Design and Access statement. All reference to our property in the planning permission thus referred to it as residential.

Can he now claim that since he has conformed to the planning as granted he can stop us from driving anything bigger than a luton transit over the track into our yard?
Submitted: 3 years ago.
Category: Law
Expert:  Ash replied 3 years ago.

Alex Watts : Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.
Alex Watts : How many years did you have access for? Do you own or lease the yard please?
Customer: Our access has always existed. Originally the access was to our parent's yard and house. The house was later sold and the yard retained for business use. It has been a commercial yard for about twenty years as far as I know. My sister and I are joint owners and currently hire it out to a marquee hire firm.
Alex Watts : You establish a prescriptive right of way after 20 years use and this becomes absolute after 40 years.
Alex Watts : So if you can show the use for this time you will not have an issue. The owner can not block access.
Alex Watts : If you have always been using large vehicles, then the new track must be suitable.
Alex Watts : What you need to do is write and ask him to fix the situation within 14 days or say you will go to court.
Alex Watts : If he refuses then approach a local Solcitor to write and give him 14 days, this may do the trick.
Alex Watts : If he refuses then you could go to court and seek an injunction that the existing track is reinstated, the new track is up to stanadrd
Alex Watts : Clearly there would be a cost to this but if you won you could seek recovery of those costs.
Alex Watts : Can I clarify anything for you about this today please?
Customer:

The use of larger vehicles has been occasional - for example our current tenant is leaving after the end of his lease and we need to get skips in and out. Also we plan on developing the site which will require building traffic to cross the bit that he has now designated as private road. We have actually contacted a solicitor who said that we need special surveys done since he has also limited the width and to get this registered with the land registry. All of this is going to cost thousands.

Alex Watts :

Yes indeed.

Customer:

Unfortunately the solicitor is on holiday till next week, which is why I am writing to you. Are you saying we need to act fast or can we wait for them to get back?

Alex Watts :

If its next week, you can probably wait until then

Customer:

Thanks. I rated you so that's my question answered.

Alex Watts :

Ok it doesn't show as rated, so let me change format

Expert:  Ash replied 3 years ago.
Try now - thanks!

Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
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