How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • Go back-and-forth until satisfied
    Rate the answer you receive.
Ask Stuart J Your Own Question
Stuart J
Stuart J, Solicitor
Category: Law
Satisfied Customers: 23781
Experience:  Senior Partner at Berkson Wallace
11292137
Type Your Law Question Here...
Stuart J is online now

My property is situated on a private road, and a planning

Customer Question

My property is situated on a private road, and a planning application has been submitted that will require access via this private road. We believe the plot of land has no easement in place to access via the private road. How do we go about checking who has formal access to the private road?
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: A third party has put in planning papers
JA: Where is the land located?
Customer: Nottingham
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: None
Submitted: 17 days ago.
Category: Law
Expert:  Stuart J replied 17 days ago.

Hello. Thank you for the question. It is my pleasure to assist you with this today.

Please bear with me as I will be online and off-line from time to time and therefore, may be delayed getting back to you. You will receive an email when I reply.

Are you the only property accessed by this road?

and what is the issue about this please?

Customer: replied 17 days ago.
A new planning application has just been submitted for a 3 bed property in the back garden of a neighbouring house. Access to this plot, and therefore new premises, is shown via a private road that is shown as being on my deeds.
The private road is currently used by 4 premises to gain access, all with formal access in place. Previously the owners of the premises paid to have the road resurfaced and are responsible jointly for it's upkeep.A neighbour has made me aware of a “Gentleman’s Agreement” that was in place between the previous owner of the plot of land and the previous owner of the private road allowing limited access to move a caravan in and out. However, at this stage I have no formal proof of access for anything further and this knowledge is based primarily on neighbours hearsay. I am keen to know how I could explore what the existing access rights to this plot are (if any) and how I should proceed with responding to the planning application.
Many thanks in advance.
Expert:  Stuart J replied 17 days ago.

Thank you.  Let me first deal with something that you haven’t asked about but may crop up as a query later on.

If a large piece of land has access/right-of-way over an adjoining piece of land or road or whatever which is owned by someone else and the large piece of land then gets chopped up into pieces, each of the pieces enjoys the same right-of-way/access as the original large piece even though it’s going to produce an increase in traffic.

If there is no provision to the contrary, then under the doctrine of mutual benefit and burden, anyone who has the benefit of using something also has the burden of repairing it.  That is the case even though they may not own it.  The obligation is in proportion to the amount of use.  For example the closest property may only use the beginning whereas the furthest property may use it all and so the obligation to repair is in proportion.

Having said all this, if the extra use is nuisance using an ordinary English dictionary definition of the word “nuisance” then there is a claim by the owner of the access/right-of-way or anybody else who is affected by this use in common law nuisance.

Rights-of-way/access/easements are generally acquired in 2 ways.

Either specifically in the deeds or through long use.

The first thing to do would be to check the title deeds of all the various pieces of land.

You will get a copy of any title deeds for registered land from the land registry by paying £3 for the deed and £3 for the plan. They download in seconds.

Here is the link

https://eservices.landregistry.gov.uk/www/wps/portal/!ut/p/b1/04_SjzS0tDQwMTIxMjLXj9CPykssy0xPLMnMz0vMAfGjzOKNjSxMDA1NjDwsjM3MDTxN3dyNDUNMjQ1MjPWDU_P0c6McFQH3SLFU/

If the property has no address, you can do a search of the index map at the land registry using land registry form SIM which is here.

http://www.landregistry.gov.uk/_media/downloads/forms/SIM.pdf

The last time I did one (last week!)  the fee was 4 pounds.

You are going to need to attach a large-scale plan based upon the ordnance survey with the area that you are enquiring about edged in red. A plan from Google Earth is not sufficient but if you get the deeds of an adjoining property you can probably use the plan from those deeds (the plan is 3 pounds) and highlight the area you are enquiring about in red.

If you haven’t got a large-scale plan sufficient to identify the area, what I normally do is get the land registry plan of the closest registered property and then photocopy that and mark the area I am enquiring about. The land registry can never say that their own plan is not sufficient!

When you get the result of the SIM back it will give you a title number of the property you are enquiring about and you can then get the deeds using the link I posted earlier up this last message.

If the property is not registered at the land registry there is absolutely no way you can find out who owns it if no one knows or no one has any knowledge or no one knows where the deeds are. Very often, deeds get lost and people die and simply gets forgotten about.

If there is nothing in the deeds that doesn’t mean that there is no easement/access/right-of-way because it can be acquired under the Prescription Act 1832 through long use of 20 years or more although it must be used without consent and without objection and not in secret.

Hence, if you could prove that there was a gentleman’s agreement that the owner used the access to the land, then they cannot acquire an easement by prescription because it’s done by consent and hence by licence and a licence can be withdrawn on reasonable notice.

What you can’t do however is withdraw all access to land if it makes it landlocked.  However the only access that a person can insist on is by foot, not the vehicles.

Thank you for letting me assist you with your legal question.  I am glad that I was able to help.

I am not certain whether that answers the question for you or not, but I am happy to answer any specific points arising from this.

It will be my pleasure to help you again either further with this or any future questions you have

Kind regards

Customer: replied 16 days ago.
That's most helpful. I will follow up on those links and see what I can find out.
Many thanks.
Expert:  Stuart J replied 16 days ago.

It was my pleasure to assist you. Please come back if anything else crops up and needs clarification.
Thank you for trusting Just Answer with your legal problem.