New development at the end of an unadopted road

New development at the end of an unadopted road

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Discussion

skwdenyer

16,181 posts

239 months

Tuesday 28th March 2023
quotequote all
I don’t have time to research it, but I believe I recall a case in which a developer was stopped from developing because the right of access was indivisible. In this case that would mean - IIRC - that the owner of the farm couldn’t unilaterally decide to create 34 new shares in the road. Nor could they necessarily create new rights of way to the 34 new properties.

Everything of course hinges on the detail. Who owns the road? What if any agreements exist over it? But it is worth the time to understand the true legal context.

hunton69

Original Poster:

659 posts

136 months

Tuesday 28th March 2023
quotequote all
Equus said:
Win?

Planning Committees don't 'win' or 'lose': they merely make decisions.

The've made one here that you don't like. Frankly - and unless, as I suggested ealier, you think you stand a chance at 'appealing' that decision using the Judicial Review process - that's just tough. Learn to live with it.
I take it you haven’t read all my replies
It doesn’t effect me as I live up the road I dislike the number of properties but not development.

CP12 was the type of properties proposed that should be in keeping within the area.
There is a shortage of 3 bed houses at the last minute the developer reduced the flats by 4 to increase the houses by 2




Equus

16,770 posts

100 months

Tuesday 28th March 2023
quotequote all
hunton69 said:
I take it you haven’t read all my replies
What makes you think that?

hunton69 said:
I dislike the number of properties...
Like I said:
They've made a decision that you don't like.

hunton69

Original Poster:

659 posts

136 months

Tuesday 28th March 2023
quotequote all
skwdenyer said:
I don’t have time to research it, but I believe I recall a case in which a developer was stopped from developing because the right of access was indivisible. In this case that would mean - IIRC - that the owner of the farm couldn’t unilaterally decide to create 34 new shares in the road. Nor could they necessarily create new rights of way to the 34 new properties.

Everything of course hinges on the detail. Who owns the road? What if any agreements exist over it? But it is worth the time to understand the true legal context.
Thank you.

This is the type of info I’m after.

This plot suits 9 detached houses which residents would support but council want as many as possible as they only achieving 38% of housing needs

Back in 80’s way before I lived here 5 houses were refused because of objections by the residents.
That would if secured the site

hunton69

Original Poster:

659 posts

136 months

Tuesday 28th March 2023
quotequote all
Equus said:
hunton69 said:
I take it you haven’t read all my replies
What makes you think that?

hunton69 said:
I dislike the number of properties...
Like I said:
They've made a decision that you don't like.
Not particularly but as I said it won’t affect me.
I’m asking on here as residents have been talking about this and it got me thinking.

There is always more than one way to skin a cat.
Just after i moved into
My current property we had a letter from
Highways to cut my laural back as there was a 30 mph sign in my garden and it was obscured.
We never knew it was there.
We refused
40 emails later after they threatened me powers to come in my land and do it themselves I threatened with my dogs I involved the police as I pre warned them that there would a breach of the peace.
Inspector turned up and agreed with me to move the sign 180 meters up the lane.
Highways wasn’t happy but it happened.
I originally offered to pay the cost but in the end didn’t because of the grief they caused me.
Moral of the story I never give up

Equus

16,770 posts

100 months

Tuesday 28th March 2023
quotequote all
skwdenyer said:
I believe I recall a case in which a developer was stopped from developing because the right of access was indivisible.
The reason you will recall it is because it's exceptional.

As I have already stated, above, this sort of thing is usually thoroughly checked out as literally one of the first things that a developer's Land Buyer will look at on a prospective site (and I really do mean literally: deliverability of access really is pretty much first thing on the list when you look at a site).

Sure, once in a blue moon, someone will fk up royally and fail to check this, but statistically (and again, I mean this literally - not as hyperbole) you'd probably be better off pinning your hopes on them finding a Roman Villa under the site that prevents development.

Equus

16,770 posts

100 months

Tuesday 28th March 2023
quotequote all
hunton69 said:
Moral of the story I never give up
Sounds like you make a hobby out of being an unnecessary pain in the arse; even, apparently when something doesn't affect you.

skwdenyer

16,181 posts

239 months

Tuesday 28th March 2023
quotequote all
Equus said:
skwdenyer said:
I believe I recall a case in which a developer was stopped from developing because the right of access was indivisible.
The reason you will recall it is because it's exceptional.

As I have already stated, above, this sort of thing is usually thoroughly checked out as literally one of the first things that a developer's Land Buyer will look at on a prospective site (and I really do mean literally: deliverability of access really is pretty much first thing on the list when you look at a site).

Sure, once in a blue moon, someone will fk up royally and fail to check this, but statistically (and again, I mean this literally - not as hyperbole) you'd probably be better off pinning your hopes on them finding a Roman Villa under the site that prevents development.
I agree with you. But for the OP, assuming the developer has done the right thing isn't all that helpful. By all means temper the OP's expectations - chances are there's nothing here - but as the OP is looking for a lever, I was just suggesting where one might be found.

I'd also add that IME (and I fully recognise yours is way larger and more relevant than mine) there are many assumptions made by developers and their professionals about how things work; or, in other cases, just as assumption that riding roughshod is the correct course of action (cf for instance the infamous Brighton - IIRC - development that had to be knocked down due to a pending right to light case - the developer was advised to just ignore it, carry on and, if necessary, budget for a bit of compensation; the court, however, chose to exercise all its powers for once and ordered demolition).

The OP only needs to be lucky once smile

Equus

16,770 posts

100 months

Tuesday 28th March 2023
quotequote all
skwdenyer said:
The OP only needs to be lucky once smile
The OP keeps telling us that he really doesn't care, because it doesn't affect him.

hunton69

Original Poster:

659 posts

136 months

Tuesday 28th March 2023
quotequote all
Equus said:
Sounds like you make a hobby out of being an unnecessary pain in the arse; even, apparently when something doesn't affect you.
You’re so judgmental without the facts.
The copper thought moving the speed sign up the hill yep it’s a steep hill was far safer from a 50 mph to a 30 and so did the neighbours.

The development isn’t great and I feel for those that it does effect.
The residents objections were laughable but they listened to an old councillor who lives in the lane.

I’ve already turned down a deal with a developer who wanted to do something similar but I wouldn’t sell up and see this area ruined.

May be I get involved because I care.


Equus

16,770 posts

100 months

Tuesday 28th March 2023
quotequote all
hunton69 said:
May be I get involved because I care.
roflroflroflroflrofl

So. Let's recap:
  • Planning Permission has been granted.
  • You failed to seek Judicial Review, which would have been the proper thing to do.
  • You don't care about the development because it doesn't affect you.
  • ... But you do care because you have a deep social conscience for those who will be affected.
  • And you intend to remedy this by physically obstructing construction access.
And you believe this will achieve what, exactly?

skwdenyer

16,181 posts

239 months

Tuesday 28th March 2023
quotequote all
Equus said:
The reason you will recall it is because it's exceptional.
OK, so a bit of research (I found the time) turns up:

Parker v Roberts (2019) - Court of Appeal found that the private road had a right to access the existing property, not to also access a new property constructed in the grounds. https://www.edwincoe.com/blogs/main/new-developmen...

If my basic research is correct, and I've correctly identified the site, it looks like planning hasn't in fact yet been granted (although I see there was a planning meeting a few days ago, so perhaps a decision was made?); in particular, it was called in to committee because of concerns over the access.

On the specific point (and I'm sure Equus will set me straight if I have this wrong - it was my late aunt who was the planning consultant, not me), the question as to whether the development can be resisted (notwithstanding the arguments in Parker v Roberts) is going to rest on (a) who owns the road, and (b) whether the change of use from a poultry farm to 35+ residences is an unjustifiable or unreasonable increase of the burden of the easement.

The exact ownership of the road is going to be crucial. Again assuming I have the correct site, a quick check on ArcGIS suggests the road itself is not registered land. That being so, what do owners' deeds say about ownership and rights of way, maintenance, etc.? Just because the land is unregistered, does not mean that it is simply owned by the houses on either side.

As regards the potential overburden, it looks like the road serves something like 32 properties - so an additional 35+ would be a doubling of the burden. That seems significant. Given that the road has clearly not been constructed to modern adoptable standards, there would be an argument that a doubling of traffic would have a non-linear (perhaps instead exponential) impact on the maintenance costs of the road, imposing an unreasonable and unjustified burden on all of the existing property owners.

There is also the question as to the dividing-up of the maintenance costs. Is the new development proposing to remain only a single "seat at the table", despite contributing over half the total (expanded) traffic? Or are they proposing to share the maintenance burden pro-rata with the number of dwellings accessed over it? That is all, it seems, highly material to the question of overburden.

But then it may be that the road is owned by the farm? Looking at some old maps (I'm interested now!), it looks like the whole site was originally one large field, from which the private road, the houses, etc. were carved out. Is it possible that the ultimate owner of the road is (or was) the farm that's proposed to be developed? I wonder if the road ownership was overlooked when the farm site was sold off? Or does the road belong to number 27 (which strangely appears also to be an unregistered plot)? I've seen in the past situations where the furthest house gets the notional ownership of the road, over which everyone else has access.

Ultimately there's a lot of nuance here. Establishing the ownership of the road, the rights, and so on is critical. Based upon my very limited research and - as Equus should rightly point out - my lack of professional practice in this area (I negotiate my own property deals, but I don't act for anyone else, so I know only what I know IYSWIM), it looks like there *might* be a way to get into this. But figuring out who has standing to bring an action may also be an issue to resolve, depending upon what else you all find.

And, lastly, one has to think in terms of settlement. Assuming there is an angle, and one can bring a case, one might still not get a court to declare the access unusable, preferring compensation instead. In that case, what should compensation be? I'd be thinking in terms of shifting the responsibility for upkeep of the whole private road onto the new developers' shoulders if one could smile

Good luck if you want to get into this. This stuff is usually a rabbit hole. One may want to take professional advice.

Also, building off the Brighton right to light case I mentioned above, if somebody is going to try to do something, they should write to the developers asap and put them on notice of their intentions. Doing that was pivotal in the Brighton case - the court found that the developer had been notified of an issue, had chosen to ignore it, and therefore was not protected by saying "but we've built now."

Edited by skwdenyer on Tuesday 28th March 02:42

skwdenyer

16,181 posts

239 months

Tuesday 28th March 2023
quotequote all
Equus said:
hunton69 said:
May be I get involved because I care.
roflroflroflroflrofl

So. Let's recap:
  • Planning Permission has been granted.
  • You failed to seek Judicial Review, which would have been the proper thing to do.
  • You don't care about the development because it doesn't affect you.
  • ... But you do care because you have a deep social conscience for those who will be affected.
  • And you intend to remedy this by physically obstructing construction access.
And you believe this will achieve what, exactly?
Judicial review is only relevant to the planning question. It looks like planning was probably granted properly. The issue of overburden of easement (if it applies) is irrelevant to planning per se.

Equus

16,770 posts

100 months

Tuesday 28th March 2023
quotequote all
skwdenyer said:
Judicial review is only relevant to the planning question. It looks like planning was probably granted properly. The issue of overburden of easement (if it applies) is irrelevant to planning per se.
Yes, absolutely.

But if you don't want a development to happen on specific Planning grounds, the right and proper thing to do is to challenge it on those grounds at the Planning stage.

Our hero has already made abundantly clear that he has no problem with the basic principle of development: it's non-compliance with Local Plan Policy CP12 that his knickers are all twisted up about (he says).

Trying to block the development by any means necessary, by trying to find spurious and vexatious issues that are nothing to do with the matters you are allegedly concerned with, is NIMBYism pure and simple, and I'm sure that the OP will protest that he is no such animal (athough he doth protest too much, if you ask me...).

blueg33

35,585 posts

223 months

Tuesday 28th March 2023
quotequote all
Equus said:
blueg33 said:
You are not permitted to intensify the use of a private right of way whether granted in a transfer, by a deed or acquired by prescription.
Yes, I'm conscious of that, but the OP has told us that the land is a former poultry farm. They generate pretty intensive traffic.

I'm also conscious that from his description of the road as serving 38 houses, the chances of it being a genuinely private right of way are slim to nil.
The thing is, it was a poultry farm not residential, the change of use can be an intensification rather than the volume of traffic. I found this out about 25 years ago developing a former dairy when our lawyers went into great detail on how it works.

As you said earlier though the chances of the developer having missed it, are likely to be zero.

hunton69

Original Poster:

659 posts

136 months

Tuesday 28th March 2023
quotequote all
Equus said:
Yes, absolutely.

But if you don't want a development to happen on specific Planning grounds, the right and proper thing to do is to challenge it on those grounds at the Planning stage.

Our hero has already made abundantly clear that he has no problem with the basic principle of development: it's non-compliance with Local Plan Policy CP12 that his knickers are all twisted up about (he says).

Trying to block the development by any means necessary, by trying to find spurious and vexatious issues that are nothing to do with the matters you are allegedly concerned with, is NIMBYism pure and simple, and I'm sure that the OP will protest that he is no such animal (athough he doth protest too much, if you ask me...).
Thank you skydenyer at least you did some research wasn’t that difficult.

Yep meeting only last Thursday I did ask why wasn’t the delegated report not out on all web site seems strange.

The residents in that road took upon themselves to oppose the site and thought they had won when the parish council opposed it I told them otherwise.
I invited them to a meeting to put a plan together but they chose not to.

CP12 yes but more about CP4 location of affordable housing due to nothing local as I have said I sought advice about limited in filing within the village as there is a 35 meter gap between me and neighbour and half my land is in secondary centre planning should be possible but he was concerned about this location being to far from the local amenities.
(He’s one at appeal over a site that wasn’t in a village)

I’m guessing that this won’t be s factor now

Tribal Chestnut

2,997 posts

181 months

Tuesday 28th March 2023
quotequote all
Equus said:
I know that I'm wasting my time, here, because your biggoted, NIMBY little mind is already made up.
Classy.


Edited quote length by Tribal Chestnut on Tuesday 28th March 07:39


Edited by Tribal Chestnut on Tuesday 28th March 07:39

CheesecakeRunner

3,706 posts

90 months

Tuesday 28th March 2023
quotequote all
hunton69 said:
Plus 5 in my lane as they are taking land of those houses to reinstate a foot path that was neglected 30 years ago and those house holders extended their gardens
So you’re saying five houses in your lane stole land to extend their gardens, and illegally blocked a public footpath? And now they’re pissed off that the legal owner is taking it back?

SpeckledJim

31,608 posts

252 months

Tuesday 28th March 2023
quotequote all
hunton69 said:
Equus said:
Sounds like you make a hobby out of being an unnecessary pain in the arse; even, apparently when something doesn't affect you.
You’re so judgmental without the facts.
The copper thought moving the speed sign up the hill yep it’s a steep hill was far safer from a 50 mph to a 30 and so did the neighbours.

The development isn’t great and I feel for those that it does effect.
The residents objections were laughable but they listened to an old councillor who lives in the lane.

I’ve already turned down a deal with a developer who wanted to do something similar but I wouldn’t sell up and see this area ruined.

May be I get involved because I care.
So you’re going to take the moral high ground by arranging a blockade.

I expect you’d be outraged if one morning you find your blockade upside down in your duck pond.

carl_w

9,154 posts

257 months

Tuesday 28th March 2023
quotequote all
hunton69 said:
This plot suits 9 detached houses which residents would support but council want as many as possible as they only achieving 38% of housing needs
Presumably the residents support 9 as that is the maximum that can be built without having to provide a %age as affordable housing?