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Thomas
Thomas, Solicitor
Category: Property Law
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Experience:  UK solicitor holding an England and Wales practising Certificate.
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The local council have a private easement over our land to

Resolved Question:

The local council have a private easement over our land to only maintain the grass in a public area behind our garden
Can they allow access over our land to a private property to maintain their garden too?
Submitted: 5 months ago.
Category: Property Law
Expert:  Thomas replied 5 months ago.

Hi,

Do they council have a private property which has a garden and for which they are using the easement?

Can I have the precise wording of the easement please?

Tom

Customer: replied 5 months ago.
The parish council are responsible for the maintenance of a piece of land behind our garden. They have right of way across the bottom of our garden to access it with their ride on mower as the access leading to it from the village hall is too narrow.
Recently, a property a few doors away ( whos large garden adjoins the council land) and who's front access is too narrow to allow garden maintenance vehicles through, approached the council to gain permission to allow their gardeners to use the councils right of way to cut their grass too. The boundary fence between the public land and their private garden has had been opened up and this is now happening without us being informed at any time.
We are not aware what arrangements the owners had in place before the council agreed to this.
I have since learned that as part of the agreement the garden maintenance company are cutting the council owned land free of charge as a goodwill gesture.
The exact wording of the covenant reads" a right of way with or without vehicles but restricted to grounds maintenance equipment over and along that part of the adjoining land shown for identification only on the plan"
The land is clearly marked as the council land and no other area.
Expert:  Thomas replied 5 months ago.

Hi

Thanks for your question. I will try to help.

If the wording of the easement does not include the private garden land then they do not have a right to access the private garden land as a result of the easement.

If they are attempting to rely on easement in order to access the private garden then you could certainly refuse them access on this basis and they would have little hope in relying on the easement itself alone to gain an access order at court.

I would caution that although they may not have rights to access the garden under the easement the Access to Neighbouring Land Act 1992

allows neighbours to apply for access to private land of neighbours at court where there is no other way to access the land and access is required for the purpose of;

  • The maintenance, renovation or repair of a property (or parts of it) in order to preserve it
  • The removal or filling in of a ditch
  • the felling of a tree, plant or hedge (or parts of it) which have died, become diseased or which have become insecurely rooted and unstable which is likely to pose a danger

So if the work they were carrying out fell in to one of the above property (note this does not include cosmetic gardening, just essential gardening to prevent the property overall deteriorating) then they could in theory attempt to apply for an order on this basis and get around the easement this way. This seems like a sledgehammer to crack a nut to be honest and I doubt they would both for a small private garden.

My goal is to provide you with a good service. If you feel you have received anything less, please reply back. Please remember to leave positive feedback using the stars at the top of the page.

Kind regards,

Tom

Thomas, Solicitor
Category: Property Law
Satisfied Customers: 7569
Experience: UK solicitor holding an England and Wales practising Certificate.
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Customer: replied 5 months ago.
Thankyou Thomas.
Thats certainly very helpful.
Expert:  Thomas replied 5 months ago.

You're welcome

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