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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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My farming neighbour has a 'A right of way... purpose

Resolved Question:

My farming neighbour has a 'A right of way... for the purpose of gaining access to or from the land for agricultural purposes and with or without animals and vehicles over and along the strip of land twelve feet wide'
He has made an application to erect a 34m high, 100kw, wind turbine in the field 334m from my house. His Design and Access statement claims that the farm needs the electricity but he does not actually used the farm, it is unoccupied and partly derelict and consequently has no significant electricity use.
Can as stop him using the right of way as this is not for agricultural purposes?
Submitted: 1 year ago.
Category: Property Law
Expert:  wingrovebuyer replied 1 year ago.
Hello. On the face of it, yes. A turbine is a non-agricultural commercial use. You can tell him that you will not allow him to use the access for the construction traffic required for the turbine. If he ignores you, you could seek an injunction preventing him from using the access other than as intended. He may argue that the turbine is at least partly to benefit the farm, but if what you say is right, that ought to fail. I suggest you write to him ASAP, saying his use of the access is for agricultural purposes only, that the erection and maintenance of a turbine is a non-agricultural purpose and that you do not consent to any expansion of the access right to include commercial uses. Tell him that he is not to permit construction traffic over the access or use it to access the turbine once erected. Tell him that if he does not observe the conditions of his access rights, you will seek an injunction to prevent breaches, and will seek to recover your costs from him. I suspect he will try to offer you money to resolve this problem, but you are not obliged to accept. Best wishes, WB
Customer: replied 1 year ago.
Is there any recent case law to support this? My concern is that I do not want to get drawn into a lengthy, and therefore costly, legal argument as to whether the turbine could be classed as an agricultural development. I am hoping that the planning process rejects the proposal but it would be nice to have a fall back position.RegardsJohn
Expert:  wingrovebuyer replied 1 year ago.
Thanks. You don't need case law - the fact he's applying for planning permission tells you that the scheme is not agricultural, because it constitutes a change of use. This may not be a lengthy dispute - if his right is somehow limited, and you raise this, his solicitor will tell him he can't erect the turbine using your land for access unless he gets your consent, which you can give (for a premium) or refuse. Please leave a rating. Best, WB
Customer: replied 1 year ago.
Surely if he was building cow shed he would still need planning permission? Don't you think McAdams Homes vs Robinson 2004 is relevant? On the two criteria referred to in the judgement I think one could argue that erecting a turbine certainly changes the character and identity of the use of the land. However, on the second criteria, although the redevelopment of the land will initially result in a significant increase in the burden on the land (construction traffic), it will not on an ongoing basis. Sorry to be a pain but I would like to feel confident of succeeding if I need to make a stand on this issue and have found to my cost in the past that the process of taking legal action can often prove costly and does not always result in justice!RegardsJohn
Expert:  wingrovebuyer replied 1 year ago.
Hello. Cow sheds don't necessarily need permission - it depends on what is planned. However, I can assure you that if the right of way is for agricultural purposes only, then using it to erect and service a turbine is not permitted - turbines are commercial, not agricultural. The case you mention may help, but there are hundreds of cases on similar issues - each case rests on its own facts. However, what is important is whether or not there is a strict restriction on what the right can be used for. Where it is clear (ie only for agriculture) there is no argument over increased burden etc because it is clear what is and is not allowed. Please leave a rating. Best, Wb
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Customer: replied 1 year ago.
Great. Thank you very much.