Hello, I am a solicitor with 20 years experience. I will try to answer this.
The council can probably stop you using the gate. They can put up a fence if they decide to on their own land (unless there is some reason preventing them from doing which is unlikely). They can not make you take down the gate if it is on your land. The style of border structure is your concern.
This is unusual behaviour for a local authority is there some reason for their approach?
My husband would like to Live Chat around 11am today. Thankyou
I will be on line at that time.
The following is a letter we have constructed not yet sent in response to letter from the Town council;
28th March 2015
Makings Land Fly Tipping and access
Dear Mr Michael Kennedy
We are in receipt of your letter dated 26th March 2015, we would like the following to be taken into consideration;
With the area in question that you describe as being part of the recreation ground, we want to ensure this is an accurate descriptive as our understanding from you/your colleagues is that you have regarded this area as waste ground being difficult to manage and inaccessible. Please confirm you’re descriptive as being part of the recreation ground?
Note: Your predecessor Jules Samuels in 2008 described this area as “at the edge” rather than “on the edge”, as described by yourself, i.e separate and outside rather than part of.
One of the main difficulties we have is that this area has been and continues to be used for fly tipping, we have reported this a number of times in the past, one of our reports to you over 10 years ago was the oil drum that you can see in your attached picture, at the same time we reported asbestos on the hillside, no cleaning action has occurred with any of these items.
We do concede and regret that a contractor we used last year had pushed the large tree stump on to Council property, this we became aware of after the contractor had finished work and apologise for this. I had tried to contact Gareth the gardener for the council on his mobile on a couple of occasions to let him know we are at present working on disposing of this item, however on the occasions I have tried I have not got through, on hind sight a letter should have been sent through to you.
Given the size of the tree stump it will take around a further 8 weeks to move, please confirm this is acceptable.
The land adjacent to our property at close has been owned by us since 2002, at the time of acquisition there was no boundary in existence between this land and the makings site common land, free access was available to this land and the public in general, the area commonly being used by children as an overspill from the Makings recreational site, additionally at the time and currently ongoing fly tipping is common over the embankment at the site of the Japanese Knot weed. Subsequently we erected a fence with a gate that has now been in place since 2002, and continued to be used as an access path through this area to Town and the recreational site. Note: From your photograph you can see we have replaced the fence, however the gate is the original one placed in 2002, some 13 years ago.
It is our position that we have had right of way through this land as we have done since before you registered your claim of the land at the Land registry and we assert our continued access to our right of way.
History to date
The Town Council were in favour of selling this area to ourselves (see full council committee notes 18th March 2008) this was agreeable by the Council we understand due to your difficulties with accessing this part of the land. The Council in our opinion, and as you are aware have reneged on this agreement. We understand we were the first and only party to offer a deal! This offer to purchase this land has not been withdrawn and still stands.
We have also had an informal agreement with your gardening department to remove dead trees that were threatening our property, one such tree falling through our fence, that we have removed at no expense to yourselves; indeed apart from your initial delay in dealing with the Japanese knot weed we have had amicable communication with yourselves.
In response to the paving slabs you refer to and have taken a picture of, these were the result of fly tipping over the past year, I simply made use of them and laid them roughly over the ground as can be seen, since they have been tipped and you clearly do not want them distributed as they are, please remove these along with all the other debris in this area, we reported to you over 10 years ago the oil barrel that can be seen in the photo, for your reference, this fly tip item is a barrel of unknown content and we were and are still concerned as to its contents. The content has undoubtedly contaminated the ground. Students we have seen, probably from the college occasionally make fires around this area and we believe it is Councils responsibility and health and safety requirements to clean and make this area safe, in previous email/letter sent to you I have described finding asbestos components that have also been fly tipped, we are particularly concerned by these as they were at a higher elevation than our house and the dust is likely to be blown around our property.
As required under the Health and Safety Executive directives once you are aware of a public health hazard you become personally responsible to ensure the corrective actions are taken to remove the hazardous substances. On this Council land it is a public hazard, this is furthermore a significant factor as you are aware that local children play in this area associated with the recreational site of Makings playing field.
If you are available it would be easier and in the interest of all to have a meeting to confirm the best way forward to resolve any issues.
This is the letter received from the local Town Council
Re: Recreation Ground
It has been brought to my attention that materials from your property have been placed on the edge of the recreation ground, in particular, paving slabs. I have enclosed acouple of photographs which were taken earlier this week. I would like to remind you that no such items should be left on Council property. Consequently, I would ask you to remove these items as they represent a potential health and safety hazard and also encourage fly tipping.
I also understand that you have installed a gate in your rear garden fence will leads directly onto the recreation ground. 1 1m sure you are aware that there is no automatic rightof access from your property onto Council land. The Council is entitled to restrict the points or times at which access to the land is given. As such, you should note that theCouncil does not give permission for the occupants of your property to gain access to Makins Recreation Ground via this route.
In addition, the Council's Parks Service will be examining all the fencing at Makins and, if felt necessary, an additional fence may be erected across your rear boundary fencewhich will span the existing gate.
I look forward to receiving your confirmation that the area in question will be cleared of all materials.
We would like to retain access to the land since this has been the case since before the council registered the land a few years ago, we use this as a route to the Town Centre. Do we have any legal cover for this
How long have you been using this route to access the town centre?
I am afraid that is not long enough to get a right of way by prescription so in the absence of any other right allowing you to use the land for access the council will have the right to put up a fence of they so wish.
Do you know if your predecessors in title used the route and if so for how long? 20 years use without permission, not by force and not by deception is what you need to acquire a right of way.
This waste land has always been accessible from our land and has only been registered by the Town Council since around 2004, our estate was built around 1973 with this area open to access, it did not then form part of the recreational ground and is now in the same state as it was then, we placed the fence and gate in around 2002.
If this land has been used as a right of way by you and your predecessors in title for over 20 years you might be able to argue that you have gained a right of way easement by way of prescription (ie continuous use without permission, deception or force can lead to a right of way coming into existence). If others have used the same right of way it might make sense to join with them in any claim that you have acquired this right.