Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
may I clarify with you please? Is the estate owner insisting that you require their permission simply to restore the roadway to its original condition or are they saying you require permission only if you wish to upgrade the condition beyond that which it was when granted as a right-of-way please?
They havent specified that. When you say "original condition" do you mean when the right of way was granted or whenIi moved in?
They are saying that I need their permission to do anything. I dont know when the original permission was granted
Original condition meaning the condition of the ROW at the time it was granted as can be best inferred.
The position was established in the case of Carter v Cole 2006 which settled such disagreements once and for all. The court decided that once a ROW is granted the person over whose land the ROW was granted has no obligations to maintain unless there is an express obligation in the grant.
Equally the court decided that you as the grantee of the ROW who has the benefit of it has no obligation to maintain unless there is an obligation to do so in which case you cannot exercise the ROW without taking the obligation to maintain.
You can maintain and repair as you wish but only to restore the ROW to its original condition in the same style and material. Any improvement would require the consent of the owner.
However there is a caveat to the above non obligation on the part of the owner to maintain which is that if the disrepair is so bad that it causes a substantial disturbance or interference in your ability to exercise your ROW then you may have an action for interference so as to be able to require the landowner to restore the ROW sufficiently to enable you to continue to use it - Cardwell v Walker 2003.
In summary you can restore but not upgrade without the landowners permission. The landowner has no duty to maintain save that the ROW must not fall into such disrepair so as to become unusable or you could consider an action against the landowner for "Interference" which can amount to a private nuisance in law.
Is there anything above I can clarify for you?
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