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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8719
Experience:  I have been practising for 30 years.
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Further to my question he has built the extensions ,as the

Customer Question

Hi further to my question he has built the extensions ,as the access is between 760 and 780 wide is it worth further action if I am not insured, and will cost be expensive.thanks
Submitted: 6 months ago.
Category: Law
Expert:  F E Smith replied 6 months ago.
It would depend whether the neighbour defended the application or not. The court application fee itself is not expensive, just a few hundred pounds.If solicitors are dealing with it for you, they will charge £200 per hour including VAT or thereabouts.If the other side are using solicitors, they will have the same kind of cost.Fully defended hearing like this, could easily relieve the loser of £10,000 if solicitors are used to know solicitors are used, the costs would be hundreds.I just measured the internal doorways of my house and they are 735 mm and the external door is 770 mm.Something like this https://www.google.co.uk/search?q=wheelchair+dimensions&espv=2&biw=1680&bih=925&tbm=isch&imgil=3shuM-sEa0AxvM%253A%253BU-Wyb3It8wthrM%253Bhttp%25253A%25252F%25252Fbandageer.info%25252Fdimensions-of-a-wheelchair%25252F&source=iu&pf=m&fir=3shuM-sEa0AxvM%253A%252CU-Wyb3It8wthrM%252C_&usg=__yxIBwckHDbDj6GnrkX7mwJePuqA%3D&ved=0ahUKEwiirbDR2PLNAhVIHxoKHUFyAcgQyjcINg&ei=M2KHV-LHFci-aMHkhcAM#imgrc=3shuM-sEa0AxvM%3Amay help you if ever this gets to court.
F E Smith, Advocate
Category: Law
Satisfied Customers: 8719
Experience: I have been practising for 30 years.
F E Smith and other Law Specialists are ready to help you
Customer: replied 6 months ago.
Thanks for your reply can I pay the fee and ask the court to resolve this , will the other party be able to claim costs against me. I have been told by a guy at work that the judge normally won't award costs to either party if we don't first try to resolve the issue. If I left it would my deeds be OK as they show a line marked in red as our shared access right of way signed and dated 1963 as we are worried that if we sold the house the deeds are not correct .thanks
Expert:  F E Smith replied 6 months ago.

There is nothing to stop you paying the court fee yourself and litigating yourself. If the other party uses solicitors and your claim is not successful, they can claim solicitors costs against you.

What you have been told is not strictly correct. You tell the other person that if they don’t regularise the situation, and make the access a reasonable width, you will apply to court for a court order to determine the matter. If they just ignore it or refuse, you have no option but to go to court.

If you simply went to court without warning them, you could get penalised with regard to costs even if you were successful in getting the court order.

If he is building over a right-of-way which is a shared access, he is restricting that right-of-way. The court would also look at whether the restriction is substantial or not. For example, a wheelie bin which obstructs a drive which is 24 foot wide is not substantial obstruction. However on a path which is 1.5 m wide it is substantial. Therefore it comes down to the facts and evidence as to whether this is a substantial obstruction. Notwithstanding the dimensions, the fact that it has come down in size by such a large amount, I’m of the opinion that the judge would find it to be a substantial obstruction.

If he has not started building, it depends whether he also wants to risk many thousands of pounds just for the tiny amount of extra building.

Customer: replied 6 months ago.
Thank you he has got the buildings erected and roofs on , however he has not finished as he has not built it in stone as per application and the driveway is about 400cm to short so he has to resubmit new plans . I have tried writing to him and sending emails no reply. I will still send emails and send mail recorded from now one again many thanks phil
Expert:  F E Smith replied 6 months ago.

Thank you. Unfortunately, then it’s unlikely that you are going to get anything out of the neighbour than compensation if this goes to court. It is unlikely that the court would make him tear the wall because you have let him do this without taking any action. The court look at this is that you should have made the application as soon as the plans were submitted error if it wasn’t evident from the plans, as soon as he started digging the foundations. Then you could possibly have got it moved but it’s unlikely now.

Customer: replied 6 months ago.
He has offered. To move our garden fence at his expense further onto our garden, as it would mean us loosing approx half a Mtrs of garden the full length we said that he could buy this strip .as then it would revert the access back to what it was.We had a reply from the planning officer who was trying to negotiate a settlement as they would not deal directly with us, that he would move fence but not pay for land.
Expert:  F E Smith replied 6 months ago.

You have a solution albeit that you lose some land but you would be entitled to be compensated for that land.

The argument now is just over that cost. It depends how valuable that piece of land is to you and what the quality of defence that he is going to put up is. What you would need to do is grant a licence over that piece of land if you are retaining it and he is not buying it from you, so that you could always grab it back at some stage in the future.

One of the thing the neighbour seems to be missing is that if you did the same thing as he’s done, I imagine the right-of-way would disappear altogether. How would he feel about that?

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