What's my chances of Highways to change their decision
Discussion
About two and a half years ago I applied to remove the public right of way across a small section of unused land next to my property. It took Hampshire county council & their highways department two full years to review and reject the application on four grounds:
"As you are aware HCC has a duty to ensure that any extinguishment application will not adversely affect the public rights to the enjoyment of the highway and will not compromise highway safety or any future highway requirements.
Unfortunately, it has not been possible to support your application because:
1. Extinguishment and disposal of the land would change the character of the street scene. The proposal would result in the loss of shared green space and the tree thereby enclosed would be at risk.
2. Extinguishment and disposal of the land would result in a loss of amenity or environmental value, see response under 1. above.
3. Extinguishment and disposal of the land would result in a gain to the applicant to the detriment of local residents. The resident would gain over local residents who will lose the amenity. Also, the house on the other corner could not do the same as the path would need to remain.
4. Extinguishment would result in a less consistent highway boundary, see response under 3. above.
Therefore, I am afraid that it is not possible to progress with your extinguishment application."[/b]
Since that decision was made the tree has continued to grow and I have now contacted the land owner requesting its removal as it's causing heave damage on my property which I feel are the main points of items 1 & 2.
Point 3 I don't really get as all land purchases are for the gain of one person and quite often to the detriment to local residents (such as the five fields within 0.5 miles of my property which have had 3,000 houses built on with no improvements to public services or road infrastructure!)
Point 4 is highly debatable as there are at least three other properties (in a cul de sac of 50 houses) whose boundaries have been extended!
The image shows my original proposal in blue which was rejected. I'd like to resubmit an application to remove right of way just on the red section.
There is a path adjacent to my property which I'm prepared to pay to divert. The diversion would add around 10metres tops!
What's the chances that they'll review it in a different light? Or am I just throwing another few hundred away for the same result!
For context the space is to be used to extend garage and provide two additional parking spaces as they're currently parked on the road. We live in a close knit community and everyone who faces the green near the proposed changes are in support of my application. It's only the council who say no!
"As you are aware HCC has a duty to ensure that any extinguishment application will not adversely affect the public rights to the enjoyment of the highway and will not compromise highway safety or any future highway requirements.
Unfortunately, it has not been possible to support your application because:
1. Extinguishment and disposal of the land would change the character of the street scene. The proposal would result in the loss of shared green space and the tree thereby enclosed would be at risk.
2. Extinguishment and disposal of the land would result in a loss of amenity or environmental value, see response under 1. above.
3. Extinguishment and disposal of the land would result in a gain to the applicant to the detriment of local residents. The resident would gain over local residents who will lose the amenity. Also, the house on the other corner could not do the same as the path would need to remain.
4. Extinguishment would result in a less consistent highway boundary, see response under 3. above.
Therefore, I am afraid that it is not possible to progress with your extinguishment application."[/b]
Since that decision was made the tree has continued to grow and I have now contacted the land owner requesting its removal as it's causing heave damage on my property which I feel are the main points of items 1 & 2.
Point 3 I don't really get as all land purchases are for the gain of one person and quite often to the detriment to local residents (such as the five fields within 0.5 miles of my property which have had 3,000 houses built on with no improvements to public services or road infrastructure!)
Point 4 is highly debatable as there are at least three other properties (in a cul de sac of 50 houses) whose boundaries have been extended!
The image shows my original proposal in blue which was rejected. I'd like to resubmit an application to remove right of way just on the red section.
There is a path adjacent to my property which I'm prepared to pay to divert. The diversion would add around 10metres tops!
What's the chances that they'll review it in a different light? Or am I just throwing another few hundred away for the same result!
For context the space is to be used to extend garage and provide two additional parking spaces as they're currently parked on the road. We live in a close knit community and everyone who faces the green near the proposed changes are in support of my application. It's only the council who say no!
Guidance notes from HCC
The Council has a duty to ensure that any application will not adversely affect the
public rights to the enjoyment of the highway and will not compromise highway safety
or any future highway requirements, namely
1. Are there highway safety implications, such as the highway to be extinguished being required for
sight lines, or for any users to step off the carriageway to avoid on coming traffic?
2. Is the land required for any future highway improvement scheme?
3. Could extinguishment and disposal of the land change the character of the street scene?
4. Could extinguishment and disposal of the land result in a loss of amenity or environmental value?
5. Could extinguishment and disposal of the land result in a gain to the applicant to the detriment of
local residents: for example, to secure private parking on land currently used for ‘public’ parking?
6. Is the land owned by the applicant or by a third party or the current (or predecessor*) highway
authority ? If so has owner agreed to the transfer of title ?
7. Would the proposed extinguishment remove the highway frontage for a third party?
8. Would an extinguishment result in a more consistent or a less consistent highway boundary?
9. Would other legislation be more appropriate, i.e. a Prohibition of Driving Order or a Gating Order?
10. Would a cultivation licence be more appropriate?
11. If the extinguishment is intended to formalise an existing encroachment, would there be a public
interest in requiring the encroachment to be removed?
12. Where areas of publicly maintainable highway are included in proposed development would the
‘stopping up’ of such areas under Section 247 of the TCPA be more appropriate?
The Council has a duty to ensure that any application will not adversely affect the
public rights to the enjoyment of the highway and will not compromise highway safety
or any future highway requirements, namely
1. Are there highway safety implications, such as the highway to be extinguished being required for
sight lines, or for any users to step off the carriageway to avoid on coming traffic?
2. Is the land required for any future highway improvement scheme?
3. Could extinguishment and disposal of the land change the character of the street scene?
4. Could extinguishment and disposal of the land result in a loss of amenity or environmental value?
5. Could extinguishment and disposal of the land result in a gain to the applicant to the detriment of
local residents: for example, to secure private parking on land currently used for ‘public’ parking?
6. Is the land owned by the applicant or by a third party or the current (or predecessor*) highway
authority ? If so has owner agreed to the transfer of title ?
7. Would the proposed extinguishment remove the highway frontage for a third party?
8. Would an extinguishment result in a more consistent or a less consistent highway boundary?
9. Would other legislation be more appropriate, i.e. a Prohibition of Driving Order or a Gating Order?
10. Would a cultivation licence be more appropriate?
11. If the extinguishment is intended to formalise an existing encroachment, would there be a public
interest in requiring the encroachment to be removed?
12. Where areas of publicly maintainable highway are included in proposed development would the
‘stopping up’ of such areas under Section 247 of the TCPA be more appropriate?
- Please note section 6 (b) The Local Authorities (England) (Property etc.) Order 1973 vests any land
mgv8 said:
There is still a lot of how you know. So, find your local counsellors and get to know them.
Pay a local company that has dealings with this kind of thing (and knows people) to work out what the right wording needs to be.
Thank you, a good shout and can't believe I didn't consider the greased palms approach.Pay a local company that has dealings with this kind of thing (and knows people) to work out what the right wording needs to be.
SIlly really as I used to work for a property developers and 'facilitation payments' were commonplace. I think the technical term is S96a & S106!
IANAL and I'm sure the grown-ups will be along soon.
But just so I'm clear on this, the bottom line is that you want to remove a footpath, that you don't own, so you can buy the land and build a garage on it?
Like I say I'm no lawyer (or planner) and I'm sure there's a whole bunch of detail that I don't have - but on the face of it I really hope they don't let you.
But just so I'm clear on this, the bottom line is that you want to remove a footpath, that you don't own, so you can buy the land and build a garage on it?
Like I say I'm no lawyer (or planner) and I'm sure there's a whole bunch of detail that I don't have - but on the face of it I really hope they don't let you.
deckster said:
IANAL and I'm sure the grown-ups will be along soon.
But just so I'm clear on this, the bottom line is that you want to remove a footpath, that you don't own, so you can buy the land and build a garage on it?
Like I say I'm no lawyer (or planner) and I'm sure there's a whole bunch of detail that I don't have - but on the face of it I really hope they don't let you.
Any particular reason you don't want it to be approved?But just so I'm clear on this, the bottom line is that you want to remove a footpath, that you don't own, so you can buy the land and build a garage on it?
Like I say I'm no lawyer (or planner) and I'm sure there's a whole bunch of detail that I don't have - but on the face of it I really hope they don't let you.
The land beneath the path and the land is owned by an investment company I have agreed to buy from them on the proviso that I obtain permission to remove part of the right of way. There is a path to the east and to the north of the plot of land that leads to the pedestrian only access green that is jointly owned by myself and the other properties in my row. The path adjacent to my property is largely moss covered due to lack of use as it only goes to the green that's under our shared ownership. There are four paths that go to the green in total.
Here's a screenshot from google streetview.
Blue lines are the east and north paths, yellow is where I would have the path diverted to and the red is where I would want for parking and to extend garage.
The only property that stands to lose any real amenity or view is our neighbours adjacent to the north of the plot who have already confirmed to me they are happy with my proposal (as are all the neighbours that I've spoken with).
The land itself is never used for recreational use as the green to the front of our property is of decent size and is where we hold our street parties etc. Occasionally neighbours and visitors park on the pavement on the corner when it's busy. Hopefully if we can remove two cars from the road then parking will be eased enough to not need to park wholly on the pavement.
Canon_Fodder said:
QuattroDave said:
Point 4 is highly debatable as there are at least three other properties (in a cul de sac of 50 houses) whose boundaries have been extended!
Have you spoken to those people and asked them how they did it?As far as I'm aware I'm just following the same process!
QuattroDave said:
deckster said:
IANAL and I'm sure the grown-ups will be along soon.
But just so I'm clear on this, the bottom line is that you want to remove a footpath, that you don't own, so you can buy the land and build a garage on it?
Like I say I'm no lawyer (or planner) and I'm sure there's a whole bunch of detail that I don't have - but on the face of it I really hope they don't let you.
Any particular reason you don't want it to be approved?But just so I'm clear on this, the bottom line is that you want to remove a footpath, that you don't own, so you can buy the land and build a garage on it?
Like I say I'm no lawyer (or planner) and I'm sure there's a whole bunch of detail that I don't have - but on the face of it I really hope they don't let you.
I get that my opinion counts for nothing here, but even then it is firmly that allowing somebody to build a garage as you have proposed will be detrimental to the overall area, and of benefit only to you. Which is exactly what the guidance you've quoted is aimed at stopping.
deckster said:
QuattroDave said:
deckster said:
IANAL and I'm sure the grown-ups will be along soon.
But just so I'm clear on this, the bottom line is that you want to remove a footpath, that you don't own, so you can buy the land and build a garage on it?
Like I say I'm no lawyer (or planner) and I'm sure there's a whole bunch of detail that I don't have - but on the face of it I really hope they don't let you.
Any particular reason you don't want it to be approved?But just so I'm clear on this, the bottom line is that you want to remove a footpath, that you don't own, so you can buy the land and build a garage on it?
Like I say I'm no lawyer (or planner) and I'm sure there's a whole bunch of detail that I don't have - but on the face of it I really hope they don't let you.
I get that my opinion counts for nothing here, but even then it is firmly that allowing somebody to build a garage as you have proposed will be detrimental to the overall area, and of benefit only to you. Which is exactly what the guidance you've quoted is aimed at stopping.
Canon_Fodder said:
Seems a bit harsh...
Perhaps they see the crescent shaped paving and the (small) green space as a nice bookend to your row of houses that the change in the kerbing, and you bigger garage, would disrupt in a jarring way.
Definitely a little harsh given prior precedent being established but perhaps you're right regarding the garage disrupting the overall look - however they allowed the previous owner of our house to extend the house by c60% and really close up the space between our house and both the small green and the adjacent property!Perhaps they see the crescent shaped paving and the (small) green space as a nice bookend to your row of houses that the change in the kerbing, and you bigger garage, would disrupt in a jarring way.
Recently we had the road refurbished by the council (tar and dash - awful job!) and a few neighbours parked their cars on that little green whilst it was being done!
EDIT - just realised the photo doesn't show the extension as it's obscured by the tree but it's a 1.5 storey extension so the look and character was already altered from original!
I think that the issue mostly revolves around the tree, as it would need to be removed to build the garage and off road parking.
I’m the Arboriculturalist for a County Council and manage trees growing within highway land and occasionally get asked for input on issues like this. Basically I expect that the Tree officer is unwilling to loose the visual amenity of the tree and has refused for the tree to change ownership and be removed.
I’m the Arboriculturalist for a County Council and manage trees growing within highway land and occasionally get asked for input on issues like this. Basically I expect that the Tree officer is unwilling to loose the visual amenity of the tree and has refused for the tree to change ownership and be removed.
QuattroDave said:
No I get that and opinions are appreciated. I have a background in architecture as well as accountancy and have worked at large developers so am aware of the importance of breaking up space which is exactly why I'm not looking at closing in the entire land I intend to buy, merely increase parking. If it means not extending the garage then that's fine by me as that would just be a really nice to have. Increasing parking by two would be of benefit to the area as despite the picture showing a nice clear road it is at times very tight with regards to parking.
Appreciate the response and I also understand that you have good reasons to pursue this.Apropos of nothing in particular, there was a bit of a fuss around here a few months back where somebody suddenly fenced off an area not dissimilar to yours (although not including a dedicated right of way) and claimed it was now their garden. Last I heard they had lost one appeal and were in the process of being taken to court by the council who had got fed up of pointing out that just because they had bought the land, didn't mean that they could do whatever they liked with it and especially, they couldn't unilaterally declare it was now part of their garden. I don't at all mean to say that this is what you are doing, but more to point out that planners on the whole are not keen on people taking over previously public spaces.
PArbor1 said:
I think that the issue mostly revolves around the tree, as it would need to be removed to build the garage and off road parking.
I’m the Arboriculturalist for a County Council and manage trees growing within highway land and occasionally get asked for input on issues like this. Basically I expect that the Tree officer is unwilling to loose the visual amenity of the tree and has refused for the tree to change ownership and be removed.
Absolutely this will be a significant factor in their decision. However the image is deceptive as there's actually >3m between my garage wall and the tree so in theory it could remain if I were just to go for the parking of two cars on the space. Unfortunately the tree has grown significantly in the last 12 months and the roots have not only lifted the path but also cracked the garage wall to the extent that I can see straight through the wall in some places!! WIth the branches now spanning across the garage and into the garden it's going to either have to be significantly cut back or like the large oak tree that was on the large green space, will have to be cut down.I’m the Arboriculturalist for a County Council and manage trees growing within highway land and occasionally get asked for input on issues like this. Basically I expect that the Tree officer is unwilling to loose the visual amenity of the tree and has refused for the tree to change ownership and be removed.
deckster said:
QuattroDave said:
No I get that and opinions are appreciated. I have a background in architecture as well as accountancy and have worked at large developers so am aware of the importance of breaking up space which is exactly why I'm not looking at closing in the entire land I intend to buy, merely increase parking. If it means not extending the garage then that's fine by me as that would just be a really nice to have. Increasing parking by two would be of benefit to the area as despite the picture showing a nice clear road it is at times very tight with regards to parking.
Appreciate the response and I also understand that you have good reasons to pursue this.Apropos of nothing in particular, there was a bit of a fuss around here a few months back where somebody suddenly fenced off an area not dissimilar to yours (although not including a dedicated right of way) and claimed it was now their garden. Last I heard they had lost one appeal and were in the process of being taken to court by the council who had got fed up of pointing out that just because they had bought the land, didn't mean that they could do whatever they liked with it and especially, they couldn't unilaterally declare it was now part of their garden. I don't at all mean to say that this is what you are doing, but more to point out that planners on the whole are not keen on people taking over previously public spaces.
deckster said:
Obviously I have no skin in the game and there may well be good reasons. But on principle I am opposed to encroaching onto little areas of green like this - it might not be used very much, it might only be a little bit of space, but areas like this are hugely important in breaking up developments and stopping everything from being a sea of buildings. Even little patches of grass and the odd tree make a massive difference to how an estate looks and feels.
I get that my opinion counts for nothing here, but even then it is firmly that allowing somebody to build a garage as you have proposed will be detrimental to the overall area, and of benefit only to you. Which is exactly what the guidance you've quoted is aimed at stopping.
Agreed, and this is exactly how the council will see it which means pursuing it further is almost certainly a waste of time any money. If it's going to benefit you personally then it's easy to say that it's only a little bit of land and that nobody will mind, but if everybody living next to little green spaces like that was easily able to sequester them then the whole development would become a lot less pleasant. I don't really see that the argument regarding the parking situation holds much water if it's only going to be made better by taking away public land. I don't blame you for giving it a go - I'd probably do the same - but I think you're on to a loser here.I get that my opinion counts for nothing here, but even then it is firmly that allowing somebody to build a garage as you have proposed will be detrimental to the overall area, and of benefit only to you. Which is exactly what the guidance you've quoted is aimed at stopping.
Roger Irrelevant said:
deckster said:
Obviously I have no skin in the game and there may well be good reasons. But on principle I am opposed to encroaching onto little areas of green like this - it might not be used very much, it might only be a little bit of space, but areas like this are hugely important in breaking up developments and stopping everything from being a sea of buildings. Even little patches of grass and the odd tree make a massive difference to how an estate looks and feels.
I get that my opinion counts for nothing here, but even then it is firmly that allowing somebody to build a garage as you have proposed will be detrimental to the overall area, and of benefit only to you. Which is exactly what the guidance you've quoted is aimed at stopping.
Agreed, and this is exactly how the council will see it which means pursuing it further is almost certainly a waste of time any money. If it's going to benefit you personally then it's easy to say that it's only a little bit of land and that nobody will mind, but if everybody living next to little green spaces like that was easily able to sequester them then the whole development would become a lot less pleasant. I don't really see that the argument regarding the parking situation holds much water if it's only going to be made better by taking away public land. I don't blame you for giving it a go - I'd probably do the same - but I think you're on to a loser here.I get that my opinion counts for nothing here, but even then it is firmly that allowing somebody to build a garage as you have proposed will be detrimental to the overall area, and of benefit only to you. Which is exactly what the guidance you've quoted is aimed at stopping.
QuattroDave said:
Absolutely this will be a significant factor in their decision. However the image is deceptive as there's actually >3m between my garage wall and the tree so in theory it could remain if I were just to go for the parking of two cars on the space. Unfortunately the tree has grown significantly in the last 12 months and the roots have not only lifted the path but also cracked the garage wall to the extent that I can see straight through the wall in some places!! WIth the branches now spanning across the garage and into the garden it's going to either have to be significantly cut back or like the large oak tree that was on the large green space, will have to be cut down.
Is the tree subject to a TPO?Or is it in a Conservation area?
First off, get on to your home insurance informing them that a highway tree has damaged your garage by direct damage due to incremental root growth. They will start a claim against th council. The tree officer should come out to assess - take your chance to have a chat!
I have 5 claims due to direct damage on going at the moment and one subsidence.
The tree might be 3m away, but if it stayed then the tree would be part of a development survey, basically the default root protection area is 12x the diameter of the stem at 1.5m above ground level.
If the tree stayed then the new garage would most likely need a cantelivered pad or mini piling between the roots, hard surfacing would need to be a no dig cell web design.
The root would need to be removed and your wall rebuilt
Gassing Station | Homes, Gardens and DIY | Top of Page | What's New | My Stuff