Single track dead end - emergency vehicles

[Elysium]

Equus said:

Elysium said:

There could be a case for adverse possession if the whole of this road has been occupied and used by residents for 12 years (or 10 years if the title is registered). However, I suspect that would be complex here with multiple residents and areas involved.

Adverse possession is not relevant in this case, and in any event is much more difficult to claim these days than it used to be. Rights of easement may be applicable, but again can be legally complex to enforce, since they are often not very clearly defined.

Why would adverse possession not be relevant?

[Equus]

Elysium said:

Why would adverse possession not be relevant?

Because it takes more than exercise of your rights of access across land to be able to claim it as your own (which is what Adverse Possession is about).

See items 2.1 and 2.2 on this link

You might try to claim a right of easment across the land (ie. the right to pass and repass unobstructed), but you're not going to be able to claim adverse possession of it.

[Elysium]

Equus said:

Elysium said:

Why would adverse possession not be relevant?

Because it takes more than exercise of your rights of access across land to be able to claim it as your own (which is what Adverse Possession is about).

See items 2.1 and 2.2 on this link

You might try to claim a right of easment across the land (ie. the right to pass and repass unobstructed), but you're not going to be able to claim adverse possession of it.

This is a private road. I said in an earlier reply that the way that is is maintained could be significant to the discussion.

If the residents have been openly parking on it and maintaining it at their cost as if it were part of their shared access road for more than 12 years, then it may be possible to obtain adverse possession. Particularly if that maintenance has been done by a management company acting as a single legal entity on behalf of the various landowners.

I agree that there may also be a potential to demonstrate a right of easement (for passage of vehicles and parking).

There is not enough information in the original post for us to know the merits of either argument. But both are complex and not where I would advise them to start.

[Equus]

Elysium said:

I suggest that was probably driven by the NHBC's wider role around technical standards.

I can assure you (having been directly involved) that it was not.

Elysium said:

As I said, there is no regulatory requirement to do this ...

Yes there is.

Paragraph B5(2) of Schedule 1 to the Building Regulations 2010 states that 'reasonable provision shall be made within the site of the building to enable fire appliances to gain access to the building'.

There is no definition in the Regulations of the meaning of 'site of the building', but In the cases I referred to, it was argued that this necessarily incorporated the access as far as the public highway.

[Equus]

Elysium said:

This is a private road. I said in an earlier reply that the way that is is maintained could be significant to the discussion.

Read the Land Registry Practice Guide that I linked to:

"Adverse possession requires factual possession of the land, with the necessary intention to possess and without the owner’s consent."

End of.

[Elysium]

Equus said:

Elysium said:

I suggest that was probably driven by the NHBC's wider role around technical standards.

I can assure you (having been directly involved) that it was not.

Fine. I am just trying to guess why an approved inspector would voluntarily decide to act as the controlling authority beyond the terms of their appointment.

The NHBC's wider role would create a motive for that, but I have no idea what happened in the example you have made because I was not involved.

Equus said:

Elysium said:

As I said, there is no regulatory requirement to do this ...

Yes there is.

Paragraph B5(2) of Schedule 1 to the Building Regulations 2010 states that 'reasonable provision shall be made within the site of the building to enable fire appliances to gain access to the building'.

There is no definition in the Regulations of the meaning of 'site of the building', but In the cases I referred to, it was argued that this necessarily incorporated the access as far as the public highway.

No there is not. The 'site of the building' is defined in the initial notice.

You have experience of an approved inspector deciding to look at areas outside of the defined site. I have experience of the opposite.

All of which confirms that it would be wrong for the OP to 'expect' Building Regulations to provide a solution.

[Elysium]

Equus said:

Elysium said:

This is a private road. I said in an earlier reply that the way that is is maintained could be significant to the discussion.

Read the Land Registry Practice Guide that I linked to:

"Adverse possession requires factual possession of the land, with the necessary intention to possess and without the owner’s consent."

End of.

I did and I gave a specific example of the way that might apply in this case.

I have no idea if a claim for adverse possession (or rights of easement for that matter) would be effective and I have already said that is not the best place to start.

However,I think you are wrong to decide it is 'not relevant' based on the information the OP has shared.

Edited by Elysium on Sunday 23 February 11:59

[Equus]

Elysium said:

The 'site of the building' is defined in the initial notice.

Not it is not.

Importantly, the particulars accompanying the Initial Notice (under section 13(2)(a)(ii) of the Building Act) must include identification of the curtilage of the building.

You, as a Planner (I assume?) should know better than anyone that 'curtilage' and 'site of the building' are two different things.

I can assure you that we took advice from a very expensive, very specialist Barrister on the matter, and his advice was to back down.

Edited by Equus on Sunday 23 February 12:22

[Equus]

Elysium said:

However,I think you are wrong to decide it is 'not relevant' based on the information the OP has shared.

OK... let's take this in easy stages:

"Adverse possession requires factual possession of the land, with the necessary intention to possess and without the owner’s consent."

1) The factual possession and the intent to possess must be without the owner's consent. If the owner has allowed you to park on his land, you cannot take adverse possession of it.

2) Adverse possession requires factual possession, and the LR guidance quotes case law for us that states:

"Factual possession signifies an appropriate degree of physical control."

With me so far?

It goes on to state:
"... It must be a single and [exclusive] possession...Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time."

It really is very simple, and very clear: adverse possession is not relevant to the OP's case.

As I said above, the OP and his neighbours may have rights of easement over the land, but that is a completely different thing to adverse possession.

Edited by Equus on Sunday 23 February 12:24

[Elysium]

Equus said:

Elysium said:

The 'site of the building' is defined in the initial notice.

Not it is not.

Importantly, the particulars accompanying the Initial Notice (under section 13(2)(a)(ii) of the Building Act) require that the curtilage of the building should be identified.

You, as a Planner (I assume?) should know better than anyone that 'curtilage' and 'site boundary' are two different things.

I can assure you that we took advice from a very expensive, very specialist Barrister on the matter, and his advice was to back down.

I work in real estate. Primarily in the area of new development.

You are clearly a very knowledgeable person. I usually enjoy your posts and I generally respect your advice.

However, I have been given guidance on this point by some very well respected Approved Inspectors. It is possible that they were wrong, but I am doubtfull. Particularly as I applied considerable pressure to try to get them to change their position.

I have already said it is possible that Building Regs could help resolve this issue for the OP, but that I would not expect it to. Based on the facts presented I think it is unlikely. Your arguments are on a narrow point that does not change that.

The Building Regulations are not retrospective. They will requre fire access to this new building, but they will not require the developer to carry out alterations to an existing road to provide compliant access to the existing properties.

The puzzle in this case is that the implementation of an approved planning permission might reduce amenity and safety of neighbouring properties. That should really have been considered as part of the planning application. It may be that it was and that there are no real issues or it may have been missed.

That is why I would start with a review of the application documents and any planning conditions. A position you have already agreed with.

[Elysium]

Equus said:

Elysium said:

However,I think you are wrong to decide it is 'not relevant' based on the information the OP has shared.

OK... let's take this in easy stages:

"Adverse possession requires factual possession of the land, with the necessary intention to possess and without the owner’s consent."

1) The factual possession and the intent to possess must be without the owner's consent. If the owner has allowed you to park on his land, you cannot take adverse possession of it.

2) Adverse possession requires factual possession, and the LR guidance quotes case law for us that states:

"Factual possession signifies an appropriate degree of physical control."

With me so far?

It goes on to state:
"... It must be a single and [exclusive] possession...Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time."

It really is very simple, and very clear: adverse possession is not relevant to the OP's case.

As I said above, the OP and his neighbours may have rights of easement over the land, but that is a completely different thing to adverse possession.

I understand the differences between rights of easement and adverse possession. I have a construction degree and 30 years of experience in property development. I still remember the lecture on the 'doctrine of lost modern grant'

Your 'bang head' smiley is totally misplaced.

I still think you are wrong to decide adverse possession is not relevant based on the scant information provided. I set out an example of why this might be the case in a previous post, which you are, for reasons I do not understand, ignoring

[Equus]

Elysium said:

However, I have been given guidance on this point by some very well respected Approved Inspectors. It is possible that they were wrong, but I am doubtfull.

Well, I have quoted the actual wording of the legislation, and as I say, we went as far as taking advice from a specialist barrister. I am far more doubtful that he would be wrong in such legal interpretation than a Building Inspector (especially an AI, who won't have the access to a legal team that a BCO might have within a Local Authority).

Elysium said:

The Building Regulations are not retrospective. They will require fire access to this new building, but they will not require the developer to carry out alterations to an existing road to provide compliant access to the existing properties.

I agree totally, but the OP was asking about prospective development, and I was responding to a post that told him that once you have Planning Permission, you can build whatever you like.

[Equus]

Elysium said:

I set out an example of why this might be the case in a previous post, which you are, for reasons I do not understand, ignoring

If you mean the post in which

you said:

There could be a case for adverse possession if the whole of this road has been occupied and used by residents for 12 years (or 10 years if the title is registered).

Then I am not ignoring it. My explanations have addressed that - they would have to have 'factually possessed' the land, which under the legal definition of 'factual possession' is virtually impossible in these circumstances (unless they have spent the last decade or so with a lockable barrier at the end of the road, that has excluded the landowner), and it would have had to be demonstrably without the owner's consent.

It is clear from your previous posts that you know your stuff, too, which is why I had reached the assumption that you were a Planner by profession, but to suggest that there is any possible claim for adverse possession of the road in this situation is entirely unsupportable.

[Elysium]

Equus said:

Elysium said:

However, I have been given guidance on this point by some very well respected Approved Inspectors. It is possible that they were wrong, but I am doubtfull.

Well, I have quoted the actual wording of the legislation, and as I say, we went as far as taking advice from a specialist barrister. I am far more doubtful that he would be wrong in such legal interpretation than a Building Inspector (especially an AI, who won't have the access to a legal team that a BCO might have within a Local Authority).

The point I have made is that the redline boundary for a planning application and the site boundary for subsequent Building Regulations approval are NOT required to be the same under any legislation.

The wording you quoted provides no proof otherwise. If there is a published legal opinion on this specific point I would love to see it.

Equus said:

Elysium said:

The Building Regulations are not retrospective. They will require fire access to this new building, but they will not require the developer to carry out alterations to an existing road to provide compliant access to the existing properties.

I agree totally, but the OP was asking about prospective development, and I was responding to a post that told him that once you have Planning Permission, you can build whatever you like.

It seems obvious to me that the OP was asking for advice regarding the impact of the development, which was set to make his road 'less commodious'.

Building Regs will clearly apply to the construction and access arrangements for the new building, but the approved inspector may not be involved in the alterations to the road and will certainly not consider non-compliance of existing arrangements.

[Elysium]

Equus said:

Elysium said:

I set out an example of why this might be the case in a previous post, which you are, for reasons I do not understand, ignoring

If you mean the post in which

you said:

There could be a case for adverse possession if the whole of this road has been occupied and used by residents for 12 years (or 10 years if the title is registered).

Then I am not ignoring it. My explanations have addressed that - they would have to have 'factually possessed' the land, which under the legal definition of 'factual possession' is virtually impossible in these circumstances (unless they have spent the last decade or so with a lockable barrier at the end of the road, that has excluded the landowner), and it would have had to be demonstrably without the owner's consent.

It is clear from your previous posts that you know your stuff, too, which is why I had reached the assumption that you were a Planner by profession, but to suggest that there is any possible claim for adverse possession of the road in this situation is entirely unsupportable.

Earlier this morning I wrote the following:

Elysium said:

If the residents have been openly parking on it and maintaining it at their cost as if it were part of their shared access road for more than 12 years, then it may be possible to obtain adverse possession. Particularly if that maintenance has been done by a management company acting as a single legal entity on behalf of the various landowners.

Here is an example where the courts held that maintaining and repaving a forecourt was evidence of factual posession. A lockable barrier was not required:

https://www.ramsdens.co.uk/blog/adverse-possession...

[Equus]

Elysium said:

The point I have made is that the redline boundary for a planning application and the site boundary for subsequent Building Regulations approval are NOT required to be the same under any legislation.

I never said they were, and I have clarified that point previously.

The legal opinion we received was when I was working as design & tech manager for one of the big national housebuilders. It is not published.

Elysium said:

...the approved inspector may not be involved in the alterations to the road and will certainly not consider non-compliance of existing arrangements.

They may, if it is drawn to their attention that the proposed works prejudice both the existing situation and the compliance of the proposed building, is my point.

The OP has already stated that it is the erection of the fence to form the site boundary that will remove the current turning facilities.

This is covered both by the interpretation of 'site of the building' that I received in the cases referred to above and, more simply, if you like, by Regulation 13(2)(a)(iii), which states that "the width and position of any street on or within the boundaries of the curtilage of the building or the building as extended" is a particular to be submitted with the Initial Notice, so even if you don't accept any distinction between 'curtilage' and 'site of the building', they've got you coming and going.

The fact that you and I are debating it at length certainly demonstrates that the interpretation is subtle and complex, but I firmly believe that there is a case to be made, if it is presented correctly.

[Elysium]

Equus said:

Elysium said:

The point I have made is that the redline boundary for a planning application and the site boundary for subsequent Building Regulations approval are NOT required to be the same under any legislation.

I never said they were, and I have clarified that point previously.

The legal opinion we received was when I was working as design & tech manager for one of the big national housebuilders. It is not published.

Elysium said:

...the approved inspector may not be involved in the alterations to the road and will certainly not consider non-compliance of existing arrangements.

They may, if it is drawn to their attention that the proposed works prejudice both the existing situation and the compliance of the proposed building, is my point.

The OP has already stated that it is the erection of the fence to form the site boundary that will remove the current turning facilities.

This is covered both by the interpretation of 'site of the building' that I received in the cases referred to above and, more simply, if you like, by Regulation 13(2)(a)(iii), which states that "the width and position of any street on or within the boundaries of the curtilage of the building or the building as extended" is a particular to be submitted with the Initial Notice, so even if you don't accept any distinction between 'curtilage' and 'site of the building', they've got you coming and going.

The fact that you and I are debating it at length certainly demonstrates that the interpretation is subtle and complex, but I firmly believe that there is a case to be made, if it is presented correctly.

I am not sure what case you are trying to make?

The OP described a length of single track road, with various 'features', existing buildings on one side and a large consented development plot on the other. Based on that description, it sounds quite possible that the developer could provide compliant access to the new building at one end of the road, whilst leaving the remainder as a single track, having removed the 'features' that residents have been using as parking spaces and passing places.

Perhaps you are imaging some different situation, but I don't think there is any way to compel a building inspector to look at the compliance of any part of the road that is not also part of the access to the new development.

If the existing part of the access is along a single lane road, the turning area could be within the new property. The lack of a suitable turning head for access to the other properties is not a problem the developer needs to solve.

Edited by Elysium on Sunday 23 February 15:20

[Equus]

Elysium said:

I am not sure what case you are trying to make?

...Perhaps you are imaging some different situation...

dmc26 said:

...when the boundary fence is placed the street becomes a 1/4mile single track with no turning circles.

I am interpreting from this part of the OP's original statement (perhaps incorrectly - the OP would need to clarify) that he believes that there is currently an adequate turning facility, but that this will be extinguished by erection of the boundary fence.

If this is the case, then the removal of the turning facility as part of the works to which B.Regs approval relates would impact on the B.Regs compliance of the proposed dwelling. Simple as that.



Edited to add:

In terms of the impact on existing dwellings, it may also be worth referring to Regulation 3(2), which tells us (edited for brevity) that:

'an alteration is material for the purposes of these Regulations if the work, or any part of it, would at any stage result...in a building not complying with a relevant requirement where previously it did ... or which before the work commenced did not comply with a relevant requirement, being more unsatisfactory...".

As I read it, the fact that this is stating 'a building', not 'the building' means that it is not limited in scope to the impact on the new building - it can be relevant to impact on neighbouring buildings as well.

...And paragraph B5 (access for fire service) is specifically listed (in para 3(3)) as a 'relevant requirement'.

Edited by Equus on Sunday 23 February 15:54

[Elysium]

Equus said:

Elysium said:

I am not sure what case you are trying to make?

...Perhaps you are imaging some different situation...

dmc26 said:

...when the boundary fence is placed the street becomes a 1/4mile single track with no turning circles.

I am interpreting from this part of the OP's original statement (perhaps incorrectly - the OP would need to clarify) that he believes that there is currently an adequate turning facility, but that this will be extinguished by erection of the boundary fence.

If this is the case, then the removal of the turning facility as part of the works to which B.Regs approval relates would impact on the B.Regs compliance of the proposed dwelling. Simple as that.

If the existing features, that are currently being used for parking and turning are being removed, we can be fairly certain that they are not needed as part of a compliant access to the new building. My guess would be that this is because adequate access is being provided within what sounds like a fairly large site.

As Building Regulations are not retrospective, there is no need for anyone to improve access to the existing houses. The OP's description suggests that the development will make that slightly worse, but that is a matter that should have been considered when planning permission was granted.

So what exactly do you think an Approved Inspector might be able to do to help the OP?

I doubt very much that they would tell the developer he can't fence in his own land when that already has planning approval. Just because it makes a situation outside of the development site less good.

I am genuinely struggling to see where you are going with this.

Edited by Elysium on Sunday 23 February 16:22

[Elysium]

Having now seen your edit, I think we get to a very amusing end point.

If we assume that Building Regulations would prevent the construction of a fence across this land, because it must be maintained for fire access, then it follows that the land cannot be used by the owner for any other purpose.

You would have to conclude that the existing properties have some rights over the land. This particular 'user' would exclude the landowner from the land so those rights can't be in the form of an easement.

What were you saying about adverse possession again?

Edited by Elysium on Sunday 23 February 16:21