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Clare, Solicitor
Category: Law
Satisfied Customers: 34906
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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I am the freehold owner of a narrow (1 metre wide) pathway

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I am the freehold owner of a narrow (1 metre wide) pathway to me front door which runs between the wall of my Grade 11 listed 17th century house and the back yard of a shop. There is a right of way "on foot" for the shop-keeper to go along this path between a gate in his fence and the pavement.
The pathway has never to my knowledge been used for deliveries or waste removal. I bought the house in 1978.
The shop-keeper has now changed the use of his premises from a retail clothing shop to a restaurant under the recent "temporary notification of variable use" rules. He now wishes to use my pathway to remove his wheelie bins full of bottles. The reasons I wish to resist this new use are (1) the size of the bins v. width of the path - i.e. the practicality; 2) the noise and disturbance right outside me living room and bedroom windows.
Size of wheelie bins and width of the path: There have always been planters along this path. Some of these were in place when I bought the house in 1978 (38 years ago) and were not new even then. Others I have added. These restrict the effective width of the path. The pots do not now and have never restricted pedestrian access along the path over the past 38 years. Another shop-keeper who has a right of way along the same path uses it every day to walk to his rear door.
Question 1: Can I be forced to remove these pots to make it possible for wheelie bins to fit down the path? If I refuse to remove them can the shop-keeper do it himself (he has threatened to).
Question 2: Can I object on the grounds of noise and disturbance if the customary use is changed?
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HiThank you for your questionMy name is ***** ***** do my best to help you but I need some further information firstWhat is the exact wording of the deed granting the right of way?
Customer: replied 2 years ago.
Hi Clare
As the Old Bakery, is as its name suggests, "old", the history and origin of the right of way is far from clear. The current evidence at the land registry just says that the right of way is "on foot" and that it requires those who have the right of way to contribute towards upkeep (They never have paid anything).
When I bought the house I was told by the conveyancing solicitor that the right of way was restricted to walking and that I should not allow use of bicycles, prams, trolleys etc. That solicitor has long retired and his firm say they no longer have any documentation relating to the sale. The mortgage holder says that they only hold digital records. So, if there were old hard copy documents at the time I bought the house, they seems to have been lost or destroyed.None of the shop-keepers have in the past 38 years of my ownership ever used the path for delivery or waste removal. Their waste bins and bags have always been put out via the front entrances of their shops.What I hope to be able to prevent is the lessee of one shop (who has suddenly changed his retail clothing shop to a bar/ restaurant under the "notification of variable use" planning legislation) using it to take his wheelie bin for glass and bottles along my narrow path to the street. Firstly they will be very noisy and will pass within inches of my living room window and right under my bedroom window. Secondly the path is not wide enough to suit this purpose. If I were forced to take away all the flower planters it would be possible to fit the commercial wheelie bins along the path. But with these planters in place it is not. Some of the planters were there when I bought the property in 1978. I have added others but this has not made much difference to the useable width of the path.
The shop-keeper is now threatening to remove my planters himself if I do not get rid of them.
I have argued that since wheelie bins did not exist in 1900 there can not have been any expectation that they could be used on this right of way. I have also argued that in practice the path is too narrow anyway and that any attempt to use it for wheelie bins would result in damage to the house. I have also argued that since the planters and plants have been there for over 38 years without causing any problem to those who can use the right of way I cannot be expected to move them now.Looking back at various old leases etc which were left in the house when I bought it, I see that in the late 1890s and in 1900 the freehold was split and two pieces of land which used to be attached to The Old Bakery were sold for building. On one piece of land (the orchard to the rear of the Old Bakery) they built cottages and on the other (actually the front garden of the Old Bakery) they built 3 shops. It is the pathway thus formed between the front of The Old Bakery and the rear of the 3 shops which I am concerned about.
Looking at the old leases does the Right of Way appear on any of these?
Customer: replied 2 years ago.
The pathway appears as a 4 foot strip of land attached to the lease of the Old Bakery (then just called Chalkley's Bakery) when the land on which the shops were (later I think) built was separated out. The actual width of the pathway is 3 ft so I suppose that this was drawn before the building actually happened. but nothing is mentioned in any document I have read about the nature of the right of way except it being "on foot". Perhaps there was some sort of foot path through the land around the farmhouse leading to bits of the ancient village which have long disappeared. Everything has changed so much particularly around 1890 / 1900 when the shops and cottages were built. At the same time the owner of the Old Bakery gifted part of the land attached to the house to the local authority so that they could widen Hoppers Road and make a pavement. So everything around the old house changed.
HiMy concern is that there has been case law within the last 40 years that makes it clear that a Right of Way on foot includes items that can be pushed - prams, bikes, even motor scooters if they are pushed, and a Wheelie Bin would come under that.However a large commercial bin is more doubtfulEqually the existence of planters for at least the last 38 years means that it can be argued that only items which can be wheeled around these can be used. I hope that this is of assistance
Clare, Solicitor
Category: Law
Satisfied Customers: 34906
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
Clare and 2 other Law Specialists are ready to help you
Customer: replied 2 years ago.
Do you think that, if I make a statement that the planters have been in place for a minimum of 38 years and that I will not remove them, the other side's solicitor is likely to advise them to accept this?