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.
Can you kindly clarify whether you own the field in question please?
If so does the neighbour own the road which you propose to access the field from or is this a public road?
I own the field in question.
The access to the field (which includes a public footpath used to belong to my family. When the land was passed on to my brother in 1991. I asked the solicitor doing the transfer to ensure that I had access to my field from the road. I have plans that show I own the access. I had some issues with my brother in 1994 re the access. The plans lodged with Land Registry show the access belonging to him. I contacted my solicitor who told me that Land Registry made an error. I believed this. I have used the access until 2013, when my new neighbour said he would serve me with an injunction. I have found some correspondence to my mother (deceased) and my solicitor that confirm changes where made to title deeds in1992. This proves that my solicitor did lie to me. I feel cheated and life has been very difficult with our neighbours. I need road access to move timber and livestock without going through my garden and across a stream. access by emergency vehicles or lorries is impossible.
My apologies for the delay in reverting to you.
Thank you for the above information. From what you say I understand that you can apart from anything else access the field by foot by using the public footpath you refer to but the issue presumably is, ignoring the issues with regards ***** ***** alterations to your title, accessing the field by vehicle. If I have understood the above correctly (please correct me if I have misunderstood anything), could you tell me 1) how long you have in practice been accessing the field by vehicle along the road and 2) that you have not asked permission from anyone nor sought to hide the fact that you have used the road to access the field by vehicle.
Thanks for your reply. I and others have used the access from the road to the field all my life. In 1994 my brother did block my access with a large sawbench. I towed this sawbench into my field to use the access. He took me to county for the return of the sawbench. The judge was amazed that we were brothers and said I had to return the sawbench within seven days I think. My brother also had to move the sawbench so that the access could be used. Shortly after this he put the land in his name on the market. I did not mind as I used the access without permission. When the land was sold I continued to use the access, I did have to ask for a car to moved occasionally. I did still believe that Land Registry had made an error and until 2013 when I located the letter to my mother. Also I did believe that if I had any problems with access and it went to court it could be proven that I did own the access. I have never hid the fact that I used the road to access the field by vehicle.
Also the reason that my neighbour has denied my use of the access is that; I objected to a planning application for a building that was to be a farm shop. The building went ahead anyway. The reason I objected was because it may have interfered with my access...
Thank you. based on what you say, you can show 20 years of continuous use of the access road both on foot and by vehicle and that you have not asked permission to use that access nor have you hidden the fact that you have used the access. Accordingly, you satisfy the criteria to claim a lawful right under the Prescription Act.
a prescriptive right can be registered as against the title to the road. Claiming a prescriptive right is relatively straightforward in the first instance and involves you retaining a solicitor to take instructions and prepare a statutory declaration which you swear. That statutory declaration can then be registered at the land Registry as above. The whole exercise should cost less than £4-500
the owner of the road can of course challenge your claim but from what you say, besides your own statement, you would likely be able to dig up evidence court claim, other individuals who are prepared to give evidence, correspondence and so on which on the balance of probability, which is the level of proof you are required to show, are reasonably likely to sustain your claim
in terms of the injunction which formed the original question you raised, your neighbour would need to make an application to the County Court using form N16A. He would need to be able to show both that you are not entitled to access your field from the road and that you have been doing so against his wishes and that you refuse to stop. you would receive his application and indicate whether you accept the same or intend to defend. If you intend to defend the application, a hearing would be convened for you to both be heard before the judge makes a decision. If you are seeking a prescriptive right at the time the application for an injunction is made, you could ask that the hearing for the injunction is adjourned pending the outcome of your application for a prescriptive right because if your application for a prescriptive right is sustained, there would be no basis for the neighbours injunction application as you would then have a lawful right registered on his title to access your field
a prescriptive right would also resolve any issues you would otherwise have on sale of the field in the future as a buyer could similarly rely on your prescriptive right for means of access
Have I been able to help you with all your questions on the above?