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wingrovebuyer
wingrovebuyer, Senior Solicitor
Category: Property Law
Satisfied Customers: 737
Experience:  Bachelor of Laws (Honours); PG Diploma in Law; Member of ALA; 9 years' experience
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access track fence dispute

Resolved Question:

Hello, this is a "neighbours' dispute" query. We bought a plot of land from a community development trust; the farmer who owns the land adjacent to both our plot and the remainder of the trust's land is antagonistic to the purposes of the trust and, by extension, to our existence (he denied access to connect to electricity pole). We access our plot via a lane owned by the trust over which we have a wayleave; the farmer also has a wayleave to access his field that bounds two sides of our roughly square plot. The other two sides are bounded by the trust's property, including the track. Last year the farmer drove a tractor into the temporary security fencing that forms the boundary between our plot and the trust's track. When I visited him to discuss a reasonable way forward with regards ***** ***** he first claimed that the damage was nothing to do with him and then that the fence made the track too narrow, after which he slammed his door in my face. As part of our works to improve our plot we are improving the boundary fence, to which end I removed the damaged fence in consultation with the trust in order to remove weeds and debris that had accumulated along its length. Two weeks ago the farmer contacted the trust (not us) regarding the absent fence, requiring it to be reinstated in order that he may move livestock along the lane. In compliance with the trust's wishes and with its agreement I re-erected the fence on a temporary basis. Thereafter, I contacted the farmer by email and informed that the fence was in place and that I would appreciate notification of his intention to move stock in order to fasten the two gateway openings. At the end of that week the farmer visited our house while I was at work and embarked on a tirade which he directed at my wife, claiming that the fence did not run along our legal boundary (with the trust's track) and that it obstructed his use of a turning space formed by the fire service access gate to the trust's property. My wife remained cool and asked where he though the fence should be. He repeated his claims regarding the boundary and the turning space, shouting and striking the ground violently with his stick; afterwards my wife was shaken and upset; since then she has become anxious at the sound of any vehicles on the lane. We went to the police and reported the incident, stating that we are concerned as to whether an apparently unstable and unreasonable individual is in posession of a firearms license. This week, again while I was at work, the farmer and two of his staff visited the lane and moved the fence onto our land, i.e. beyond the boundary, without consulting either the trust or us. My wife was at home, but after the previous encounter determined not to risk a confrontation. The farmer has now issued us an invoice requiring that we pay his costs for moving the fence, claiming that it was preventing his access to his field 'in spite of repeated representations' (according to the farmer's accompanying letter; this is despite having twice visited the field by Landrover with the fence in situ. The question: is the farmer legally entitled to unilaterally interfere with a fence that is not on or adjacent to his property and then attempt to charge for doing so? Can this question only be answered with reference to the farmer's wayleave? thank you for your time - Jeremy

Submitted: 2 years ago.
Category: Property Law
Expert:  wingrovebuyer replied 2 years ago.
wingrovebuyer : Hello. Yes, you need to know what rights he has over the track. This may specify a width, but even if it doesn't, if it is a right of access for Agricultural purposes there will be implied in it a reasonable width to allow farm machinery to pass. It may or may not refer to animals too. Can you access a copy of the document in which his rights were granted? With regard to the invoice, ignore it - he can't do this. Best, WB
Customer:

Hi,

Customer:

Hi

thanks for your speedy response - I'm just waiting on info from the trust re. their burdens w.r.t. access for farmer, to see if I have further questions

best wishes - Jeremy

wingrovebuyer : Hi Jeremy. Could you please leave a rating, and I will answer related follow ups free. Best, WB
Customer:

Hello,

trust's burdens state:

Customer:
Disposition by Secretary of State for Defence to Killermont and Garscadden Estates Limited and its successors and assignees, recorded G.R.S. (Perth) 13 Oct. 1967, of parts of the Farm and Lands of Cultybraggan, which contains the following rights and burdens which affect the subjects in this Title:
...
(two) all rights and privileges attached to the said subjects with free ish and entry by the existing roads and ways at present used for the purpose of access thereto

------------------------

'the purpose of access thereto' could be either specific or very general - presumably the farm cannot demand access by whatever means (i.e. track needs to accommodate whatever vehicle they choose to use) or along whatever track is available (i.e. the farm may use whatever track is available, with no requirement for trust to maintain it to any level of passibility) - any thoughts? The relevance being: if we and the Trust have elected to erect a fence alongside the track which allows access but not specifically for the farm's biggest tractor then - does the farm have grounds for complaint or do they have to put up?
wingrovebuyer : Hi. Where the right is not specfifc, the general rule would be that the width would be defined by the type of machinery using it at the time. So, if access was simply taken by a tractor, that is all that was envisaged, and so arguably the width is limited to such extent as accommodates a tractor. Combines, for example, are much wider. I suggest you put the ball back in the farmer's court, as he is the one asserting he has a wider right of access. You could do this by writing to him and saying that the fence is on your land and if he removes it you will ask the police to prosecute him for ciriminal damage to your property. If he takes legal advice, they will confirm that if he has a legal case, he will have to go through the proper channels to get the fence moved. If he has a case, he is obliged to set it out to you, and you can consider the case and decide whether or not you will allow the fence to be moved. Hope this helps!
Customer:

Thanks - that's very helpful.

wingrovebuyer, Senior Solicitor
Category: Property Law
Satisfied Customers: 737
Experience: Bachelor of Laws (Honours); PG Diploma in Law; Member of ALA; 9 years' experience
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