How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Joshua Your Own Question
Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
35043042
Type Your Property Law Question Here...
Joshua is online now

Should the conveyance for our property detail a public footpath

Customer Question

Should the conveyance for our property detail a public footpath running through it. We bought a house seven years ago which has a footpath adjacent to the property and now the council tell us that the footpath should go through our property. The path with signs and posts has run through the adjacent field for over 20 years but now the new owner of the field claims it should run through our property and not the field. The owner of the field is also the chairman of the parish council.
Submitted: 3 years ago.
Category: Property Law
Expert:  Joshua replied 3 years ago.

Joshua :

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.

Joshua :

Have you contacted the local authority please to obtain a copy of the definitive map for the section of footpath in question please?

Joshua :

Is your garden enclosed with fences or hedges?

Customer:

Our semi detached cottage is in a very rural position all once owned by local Peckforton Estate. When we bought it the survey map shows it going through our property but at the time the definitive map showed it running through the field but this map has now been changed to show it running through our property. The house is enclosed by a hedge and our septic tank lies in the field on the other side of the hedge beside the footpath. The council claim the footpath was moved but have no record of it being moved. We believe that the hedge was planted when the estate sold our cottage. There is no mention of a footpath in the conveyance but there is detail of our need to maintain the septic tanks in the field. The man who owns the field lives in a huge house across the field. We built an outbuilding which he does not like as it affects his views of Beeston Castle and he is doing everything in his power to try and force us or the council to demolish it. This is his latest effort and the council are siding with him. The council really have no proof other than old documents that relate to a lane that used to run in front of the house. The council had their highway department survey the property and they overlaid a 110 year old map with the definitive map and came to the conclusion that the path should be on our side of the hedge. The hedge is not a legal boundary and we are contesting their findings

Customer:

why have you stepped out?

Joshua :

I am sorry you have rated my service as bad. I have not had the opportunity to provide you with any serve to date. I should be grateful if you would consider rerating to enable me to continue as unfortunately I cannot continue with a bad rating and I shall have to opt out. Would you kindly advise how you would like me to proceed?

Customer:

I have sent you brief detail. Could you answer the main question which is whether the footpath should be detailed in our conveyance document

Joshua :

Thank you for the above. Unfortunately you have rated my service to you as bad before I have had the opportunity provide you with any service. If you would kindly consider rerating my service as I cannot continue if you have rated my service to you as bad. I would be happy to assist of course subject as above.

Customer:

if i rate again the chat closes and i have not had an answer

Joshua :

We can continue in question and answer format in real time. Normally you would rate at the end of our chat but unfortunately because you have rated bad, I cannot continue any further as this will reflect on my profile. I would be delighted to assist but alternatively if you prefer I can opt out and others may be prepared to assist.

Customer:

I am happy to rate at the end of the chat.

Joshua :

Thanks. Unfortunately I will have to opt out on that basis as I cannot provide an answer with an existing bad rating. I am sorry I was not able to assist you this time. Colleagues may be prepared to assist you. I wish you all the best with a resolution.

Customer:

How do I get my money back then

Customer:

This is daft. I will hit OK service but i just would have liked an answer.

Joshua :

Thank you

Joshua and other Property Law Specialists are ready to help you
Expert:  Joshua replied 3 years ago.
Thank you for your rerating. I am sorry for the above position - there is a bug in that it should njot be possible to rate before I have given an answer but it has not yet been fixed.

Can you confirm you can read this alright? I am just reviewing the information you have kindly provided above...
Customer: replied 3 years ago.

I can read it, yes.

Expert:  Joshua replied 3 years ago.
Thanks for the above. You mention the definitive map showed at the time of purchase of the property that the footpath ran through the field joining your property but that it now has changed. What records does the council have to account for this change? Does the council accept that the defnitive map has been changed?

Do still have a copy of the map you obtained at the time of purchase?
Customer: replied 3 years ago.

Some months ago when this first reared it's head I called the office which held the definitive map and the clerk looked at it online with me. It clearly showed it running through the field but then when I heard that the council were saying it should go through our property I called the office again and the clerk told me that it now showed that it runs through our land and it must have been chenged, The council agreed that it had been changed. I have the map from when we bought the house but it shows it going through our land. We believe our property was reduced in size when the estate sold it so that the path would not run through it but we have no proof. We believe that the hedge was put in after the map was drawn up otherwise why would our septic tanks be on the other side of the hedge?

Expert:  Joshua replied 3 years ago.
Thanks. Did your solicitor not make enquiries at the time of purchase if the DM showed a footpath running through your land? Do you know if your local search indicated a footpath running over the property?

Based on what you say the DM seems to have been changed at some point after your purchase and then again in the last few months?

Finally from what you say you have no copy of the map showing the footpath in the next door field?
Customer: replied 3 years ago.

At the time the solicitor pointed out that a footpath ran adjacent to our property but it showed on the 110 year old ordnance survey map that it ran through the property. As the council maintained the path through the field and had done for years we assumed it was moved prior to our purchase but again there is no mention of it in the deeds.The DM after we bought it showed it going through the field but has been changed in the last six months since this investigation started to show it going through our property.No there is no map showing it going through the field but we do not think it has been moved we believe the hedge was planted to separate the house from the path. Nobody is able to define the actual legal boundary.

Customer: replied 3 years ago.

Have you replied yet as I cannot see your response.

Expert:  Joshua replied 3 years ago.
Thanks. The starting point is that the Definitive Map and Statement amounts to a conclusive legal record of public rights of way. This means that if a route is shown on the Definitive Map and Statement, it is conclusive proof that that route is a public right of way which the public are entitled to use. The council cannot tinker with the DM as they like. Any chnages required a statutory process and a modification order and the council is required to maintain a register of changes made to the DM since 2005 under Schedule 14 and Section 53(5) of the Wildlife and Countryside Act 1981.

Accordingly if there appear to have been changes to the DM the council should be asked for details of the changes in particular compliance with the above Act. If they cannot acount for changes those changes may be unlawful and a complaint could be considered with the Local Authority Omnudsman. I am still typing but I will post the above. Further text to follow...
Expert:  Joshua replied 3 years ago.
notwithstanding the above, if the scale of the definitive map does not sufficiently enable the parties to identify the precisely condition of the footpath, which may be the case because from what you say you are arguing about essentially a few feet or less on a map which has a much larger scale, there may be a significant element of what amounts to a boundary dispute particularly in relation to the location of the boundary and the footpath.

The fact of the physical location of the footpath is persuasvie evidence in your favour. My view would be that the council would need to make a Public Path Diversion Order under s119 of the Highways Act 1980 in order to alter the physical route of the footpath for which the landowner would need to apply and demonstrate that his proposal is in his interests of the land and/or the public, and that the proposed route is not substantially less convenient for the public to use than the existing route.

If it is argued that no such order is required because the footpath is in the wrong place, consideration can be given to retaining a surveyor to prepare a boundary report to contest the view.
Customer: replied 3 years ago.

Thank you. That has been a big help, eventually:)

Expert:  Joshua replied 3 years ago.
A pleasure. I am sorry for the initial misunderstanding. I have reported the bug and it is my hope that it will be fixed before too much longer.

If I can assist any further as the situation develops please do not hesitate to revert to me