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Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69268
Experience:  Over 5 years in practice.
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We own a terrace, the neighbours want to increase the size

Resolved Question:

We own a terrace, the neighbours want to increase the size of theirs by some 25%. They have right of access across our garden to a garden gate into their garden, which we were led to believe was for utility purposes i.e. garden refuse and dustbins. In their plans they want to extend the house over this access gate, turning the gate into an entrance into their house. This is right outside our kitchen window. Are they allowed to do this?
Submitted: 2 years ago.
Category: Property Law
Expert:  Remus2004 replied 2 years ago.
Thank you for your question. My name is ***** ***** I will try to help with this.

What is the exact wording of the right-of-way in the deeds?

What difference does it make whether they are going through a gate into their garden or going through the door into their house.

Is theirs the end property or does the right-of-way continue for any other property beyond theirs?

Could the right-of-way be moved further away from your house? Would you be happy with that?
Customer: replied 2 years ago.

Thank you for your reply. The wording is as follows:

The owner and occupiers of Number 127 and all persons authorised by him or them respectively a right of way on foot only over and along and across the land coloured green.

The garden gate is right outside my kitchen window. The neighbour runs a day care centre and the extension will house the room in which she will run her day care. This means that from having them use the right of access twice per week, they will now be using it to gain access to their property many times a day. The questions are:

1. Are they allowed to use the access through my garden for their day care centre i.e. as a drop off and pick up entry?

2. They will now need to stop and unlock a door to enter the house - it is very dark in that corner, and a light would need to be installed for them to see the door in the dark - this would shine directly into my home.

3. If at any time I wanted to extend my home (which I understand would require my to have the access moved) I would not be able to as it would go over the door into their house.



Expert:  Remus2004 replied 2 years ago.
The daycare issue is likely to make a big difference.

Rights-of-way like this are often expressed as “for all normal purposes associated with the property” and running the daycare centre would not be “all normal purposes”, it is an extra ordinary purpose and it would not therefore be allowed.

However, in your case, it says “all persons authorised by him… Etc” which basically means anyone who is visiting the property.

I assume that they are not using the back entrance to the house for the daycare at this stage which means that nobody is going through the gate into the garden and then into the house.

What they are not allowed to do is cause nuisance so if there is a continual trail of people going in and out this is nuisance.

I am of the opinion that you could not stop them doing what they want to do with regard to putting the door into the extension in place of the gate.

However I am of the opinion that what they are proposing to do by way of using it would constitute nuisance.

I think it would be sufficient for you to successfully object to their planning consent and the use. You cannot object to the planning consent and the use on the basis that you do not like the idea but only on the basis that it will have an adverse affect on your property.

Can I clarify anything for you?

Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69268
Experience: Over 5 years in practice.
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