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Stuart J
Stuart J, Solicitor
Category: Property Law
Satisfied Customers: 22403
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street Practice
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I am a local Councillor. A small developer has applied for

Customer Question

I am a local Councillor. A small developer has applied for planning permission to convert a property into flats. However, there is only one parking space accessed directly from the highway. The other 4 spaces are at the rear of the site and involve driving over someone else's land. This landowner has stated that he will not give permission for this. The parking bay is immediately at right angles to two other parking spaces for existing properties which have easements over the land and at least one of the 'new' parking spaces will involve some very tricky manoeuvering which practically will not happen. This proposal has been put on the planning agenda twice now, but withdrawn each time as the applicant had not served notice on the affected residents. Each time it was I who pointed out the failures. It has now come up a third time, as I have requested it to do so, as the officer recommendation is to permit. I appreciate that planning permission can be gained if one does not own the land, but what about access? The planning officer says if permitted it becomes a civil matter to be argued about between residents and applicant. Are their any legal arguments that I can use to prevent this application succeeding.
Submitted: 3 years ago.
Category: Property Law
Expert:  Stuart J replied 3 years ago.
Thank you for your question here on Just answer. It is my pleasure to try and assist you with this today. Please bear with me if I need to ask for any further information from you in order for me to be able to advise you fully. My name is Law Denning and I am a practising solicitor. I have been an expert on this website in UK law since 2008. During that time, as you appreciate, I have answered thousands of questions from satisfied users on a variety of subjects.
Because we are all in practice with clients and court and other users, I might not always respond in minutes, particularly evenings and weekends. Please bear with me in that case. I will be online and off-line all day most weekdays and weekends. 
Would you be prevented from gaining access?
Customer: replied 3 years ago.

This application is due to be heard Thursday evening. I will need some time to prepare my speech/ notes etc so I am afraid it is a little time limited.

Expert:  Stuart J replied 3 years ago.
Is the concern the restricted access?
If the existing parking spaces or had Range Rovers in, would it still be possible to access the other parking space?
I assume that as there is a reluctant landowner, I assume that his land is out of the equation. Please confirm.
When you say “it will not happen”, what will happen then?
Customer: replied 3 years ago.

It is the fact that the access is restricted and also across someone else's land, so if granted the development would not in fact have the parking shown in the plans as there would be no access to the parking

Customer: replied 3 years ago.

I feel it will not happen because parking like water takes the line of least resistance and if difficult people will chose to park somewhere else. This small area is already very congested

Expert:  Stuart J replied 3 years ago.


I am missing something here because either the reluctant owner
will grant access or he will not. If he will not, and it appears that there is
no extra parking, full stop.

That is one issue to raise at the meeting that the access on the
plans does not exist and has been refused.



I am not certain what kind of legal argument you are looking for

Customer: replied 3 years ago.

It is good to have such clarity. The planning officers say that they grant permission for the development. The fact that the access is not in the ownership of the applicant is irrelevant as it is not a condition of planning that the applicant owns the land. Indeed it is not; many purchases of sites are conditional on the proposed purchaser gaining planning permission before any money changes hands. In this case it is not the site itself that is at issue, it is the access and the planners say that it is not for the local planning authority to turn down an application on the grounds that the applicant does not own the land.


 


My argument is, that ownership of the land is not in contention. It is the access that is at issue here . I would like to be able to quote something that distinguishes between the ownership of the site and the ownership of the access to the site.

Expert:  Stuart J replied 3 years ago.


I don't know whether the reluctant landowner will support your
case or not.

if he will support it,
then a simple letter which says that he will not agree to grant access over his
land and he has no intention of selling it will support your objection.



If you cannot get that, my suggestion would be to make the
planning consent conditional upon the owner getting a legal easement over the
reluctant owners land BEFORE the development starts.



The planning department can do this.

Customer: replied 3 years ago.

I have gone down this road. The planning department say that the question of access is a civil matter and not their concern. However, I think your suggestion is a good one and I will try to get one of the Councillors on the planning committee ( I am the Ward member and although I can speak I cannot vote or propose a motion) to propose a motion that the application should be deferred until the applicant has a legal easement guaranteeing access. However, again I am concerned that without any form of legal reference this will be rejected.

Expert:  Stuart J replied 3 years ago.


Researching extensive case law is beyond the scope of this site
and a barrister will charge £300 per hour for it. We do quote case law when it
readily rolls from our memory.

In addition, the legal resource used by solicitors and barristers
to access such information costs upwards of £10,000 per annum.



Let me give you an analogy.



I want to build a house on a major dual carriageway.



The local authority will not let me have it because they will not
have me coming out of my drive onto a road where cars are flying past at 70
mph.



So I say, that's not a problem, I can access from a side road
around the back over a field which I don't own.



The local authority are not going to say "okay go ahead then" if
they know that I am never ever going to get the access that I need.



I think the conditional planning consent subjected to the
easement is the way to go.



If the developer is going to get the easement then it won't
presenting with a problem because he cannot access the land until he has the
easement in any event!

Customer: replied 3 years ago.

Thank you for this. I don't think I was looking for extensive case law, but something along the lines of the XYZ Act 20** talks of applications where the applicant does not own the property at issue. But does not apply to situations where the access is a point of contention and without consent the application must fall.

Expert:  Stuart J replied 3 years ago.

The planning department is absolutely correct when they say that there is nothing to stop anyone applying for planning permission on land which they do not own.

It therefore comes down to it being a condition of the planning permission , it is as simple as that

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