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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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A property next door has been purchased by the Co-op. In our

Resolved Question:

Hi, a property next door has been purchased by the Co-op.In our deeds we have a conveyance giving us the right at all times for access to and egress from the rear of our property over a driveway owned by next door.The Co-op are planning to demolish next door, turn it all into a car park and double the width of the driveway to allow public traffic in / out for commercial purposes.Can the Co-op legally re-purpose a residential driveway to commercial, making access and egress as specified in the deeds virtually impossible due to the volume of public traffic that would run over the drive ?
Submitted: 1 month ago.
Category: Law
Expert:  Joshua replied 1 month ago.

Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

I am sorry to read of the above. May I clarify why it will be very difficult for you to access the rear of your property if the use of the drive is converted to commercial use?

Customer: replied 1 month ago.
Because we will have to negotiate an in and out flow of traffic 17 hours a day where the driveway all but attaches to our wall.
Expert:  Joshua replied 1 month ago.

Thank you. It may very well be that I do not entirely understand the physical postion on the ground so forgive me if this is the case but would this not be a case whereby you would turn into the supermarket car park as if you were shopping there and then proceed to the read of your property via the same route which you presently take? Other than the addition of additional traffic, would your route not be the same as it is now?

Customer: replied 1 month ago.
The route would be the same. My question is really as originally asked .... "Can the Co-op legally re-purpose a residential driveway to commercial" ?
Expert:  Joshua replied 1 month ago.

Thank you for confirming - I wanted to ensure I had the facts precisely before addressing your question. I am sorry to report that this is likely to be difficult to resist. The starting point is that the Coop are entitled to do with their land as they wish though of course they will need planning permission for change of use and this is certainly something against which you could object.

The above notwithstanding, you can only take action in respect of coops actions in respect of their land if you can show that they are "substantially interfering" with your rights. The case of B&Q plc v Liverpool & Lancashire Properties Ltd [2000] EWHC 463 (Ch) considered what amounts to substantial interference. It was decided as follows:

  • The test of an actionable interference is not whether what the grantee is left with is reasonable, but whether insisting on being able to use the whole of what was granted is reasonable.

  • It is not open to the grantor to deprive the grantee of his preferred means of use and argue that someone else would do things differently, unless the grantee's preference is unreasonable or perverse.

  • If the grantee has contracted for the relative luxury of an extensive right, he should not be deprived of that right merely because it is a luxury and the reduced right would be all that was reasonably required. The test is not one of necessity or reasonable necessity. Provided that what the grantee is insisting on is not unreasonable in the context of the grant, the question is "can the right of way be substantially and practically exercised as conveniently as before?"

The starting point is therefore to look at the precise wording of the right you have been given in your deeds. If you could point to exclusive use of that strip of land for example this could be a ground for resisting the coops plans. However I assume (though plese correct me if my assumption is incorrect) that your right is limited to a right in common with the owners of the land or words to that effect. If this is the case providing coop do not obstruct your access so that you can no longer reach the rear of your property or that they make it substantially more difficult to do so - e.g. narrow the width so that you can no longer get by without extreme care the sharing the route with other traffic would not amount to grounds for objection providing the access s still safe to use. It would almost certainluy be a condition of their planning permission that any turning complies with all necessary road traffic regulations and so this condition is likely to be satisifed.

If you believe the grant of the right of way goes further than my above assumption, please would you kindly let me have the exact wording and I will be pleased to consider whether you can make a case that it grants you more rights than that set out above. I am sorry otherwise not to give you a more upbeat assessment, but I would not want to give false hope or much less encourage you to spend money seeking an injunction if there is not a reaonable chance of success. If I can assista ny further with the above, please come back to me.

Does the above answer all your questions? If it does, I should be very grateful if you would kindly take a moment to click a rating for my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Customer: replied 1 month ago.
Hi Joshua, the exact wording is:(29.09.1994) The land has the benefit of the following rights reserved by a Conveyance of land adjoining the eastern boundary of the land in this title dated 16 August 1960 made between (1) Alfred ***** *****on (Vendor) and (2) Western Estates (Lawes Cherry) Limited (Company) :-EXCEPTING AND RESERVING to the Vendor and his successors in title of the said property known as "Playdon" and his or their tenants and other persons authorised by him or them and on foot, bicycle, motor car or other vehicle the right at all times in conjunction with the Company and its successors in title of the land hereby conveyed to use the strip of land coloured yellow on the said plan for the purpose of access to and egress from the rear of the said property known an "Playdon"I have attached the plan showing the land coloured in yellow. I don't have their proposed plan with me but I can tell you that they are planning to put parking bays over the turning area at the bottom of the drive.
Expert:  Joshua replied 1 month ago.

Thank you very much for the above and the plan which are both very helpful. As I suspected the right you have been granted is granted "in conjunction" with the owner of the land and is not an exclusive right so unfortunately my above analysis must remain unchanged that sharing the access with other cars is very unliely to amount to substntial intereference under the above case law I deeply regret. The only caveat to that would be if traffic were so bad that you had to queue for a long time to exercise your right of way that could amount to subtantial interference but I assume traffic is unlikely to be that bad.

What is worth noting however is that the plan provides for a very specific route over which you are to be given access. If it is part of coops plans to move the entrance from the corner adjoining your property then this can amount to unlawful interference because you are entitled to a right of way over the defined route tinted yellow. The coop can therefore create new accessway for its carpark but must continue to allow you access over the route you presently enjoy. In addition they cannot mark that area out for car parking as this would obstruct your route.

Has the above answered your questions satisfactorily or is there anything I can clarify for you?

Joshua and 2 other Law Specialists are ready to help you
Customer: replied 1 month ago.
Hi Joshua,
You've answered what I suspected to be the case.
Thanks very much.
I'll do the rating thing now.Simon.
Expert:  Joshua replied 1 month ago.

A pleasure. I am very sorry that I was not able to give a more upbeat analysis. Obviously do check out the filed plans for the car park to ensure that they are not allocating arking over any part of your right of way and any issues re the access. The earlier you spot any such issues the easier they are likely to be to resolve.