Private rights of way – a recent successful decision and a helpful costs award.

One aspect of our practice which we have developed from our specialism in public rights of way is private access, as the two issues often come together.  It can also be the case that a client has both public and private rights of way issues and that was the situation for our farmer clients in Nottinghamshire.

We had successfully defeated a claim for a public right of way across their land so when a neighbour sought to claim a private right to access the rear garden of his house over our client’s farm track they came to us.

After a false start when the neighbours claimed and then withdrew their application to the Land Registry, the matter was referred to the Land Registry Tribunal and after an exchange of written cases and documents which we settled, a final hearing was arranged to hear the oral evidence of the parties.

The track in dispute

The facts were intriguing as the neighbours’ house had originally been owned by our clients’ family before being sold off. The house had an access from the road and no rights over the adjacent track had been granted when the house had been sold.  The neighbours case relied on use over a 20 year period.  In order to have a full 20 years of use they were reliant on use by their predecessors.

Our clients’ case was that the owners of the house before the current neighbours purchased had been given permission to use the track. The current neighbours denied this and recited a conversation they claimed to have had before they purchased.  The oral evidence was that the neighbours had been told that the track had been used “freely without objection or challenge”.

The Judge addressed this alleged conversation in his written judgment, saying this “did not ring true” and “was the language of a lawyer, not a lay man”.  He concluded “I cannot accept this evidence.”

A twist came when it was established at trial that the permission had been given by our clients’ predecessor family member, and so this did not extend to the period after our clients had acquired the land.  This may have meant that there had been 20 years of use without permission.

We were able to adduce evidence and argue that the level of the alleged use had been exaggerated, and that the use had frequently been after the neighbour discovered the padlock code, or had acquired a key to the replacement padlock.

The Judge agreed with our case and refused to grant the right of way.  He ordered the neighbours to pay our clients’ costs.

The Judge assessed the costs and his award was issued on 1 August.  He addressed arguments made by the neighbours’ counsel that our fees should not be payable as we are a consultancy.  He found that the Land Registry Procedure Rules made it clear that a party was free to engage a consultant.  He said:

“In relation to ET Landnet’s fees… the hourly rate (£200) is, in my judgment, reasonable and I am satisfied that it was reasonable to engage ET Landnet and that the costs incurred in doing so were reasonably incurred”.

We instructed Philip Noble of Counsel to represent our clients at the hearing.  His fees in full were also awarded to be paid by the Neighbours.  The total costs award was £12,684.

The full case details are:

Thomas Bradley and Karon Leslie Birchall v R J Howard Farming Limited REF/2018/0260

For further details or advice on private rights of way issues, contact Michael Wood.

mw@etlandnet.co.uk


A Night at the Oscars

On Thursday 5 October 2017 we enjoyed the red carpet experience at Denbies’ Wine Estate in Surrey as a finalist in the Best Rural Professional Services category in the Rural Business Awards, Sponsored by the CLA and Amazon.  It was quite a night!

We were awarded “Highly Commended” in our category.  As a small niche business we were delighted with this acknowledgement of the service that we provide.

The night started with a champagne reception giving us the opportunity to speak to fellow finalists and guests.  An interesting discussion with the Amazon contingent included the usefulness of the Amazon delivery boxes as composting material!

Our table was next to the stage – ideal for viewing the pre-presentation final details and the host, Jules Hudson from Escape to the Country.

Of course to have won would have been fantastic but the calibre of our fellow finalists was significant.  Being beaten by a law firm with more than 200 employees and partners and a turnover of £14M is no disgrace!

A great night, explaining footpath diversions and modification orders to our table and learning about dog treats, farm shops and baking from them.

Congratulations to everyone who made it to the finals – we know just how much work it takes to shine in your chosen field,  Well done!

We are always pleased to talk about public rights of way – just get in touch using the form below.


Countdown to the Rural Business Awards

RBA-2017-Finalist-Badge

There is just one month left before the winners at the Rural Business Awards are announced.  We have our tickets for the event and the hotel is booked.  The suit needs a brush down but is otherwise fine.  I have to practice tying the bow-tie as it is not my normal attire.

As finalists with four other keen competitors in the Best Rural Professional Services Business Category, we have to hope that our USP has made us stand out in the judging process. Our competitors are Appetite Me, Greenway Training, McCartneys LLP and Roythornes Limited.  We wish them well, but not necessarily as well as us!

We have done our bit of PR with visits to CLA events and the Game Fair but by and large our build up to the final has been to concentrate on the business of sorting out our clients’ public rights of way issues.

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We have just completed and lodged an application for the diversion of a bridleway away from this yard between the house and barn on this North Yorkshire property. 

We are very grateful to our supportive clients who value our service and write things like:

“Michael Wood from ET Landnet very recently acted for us in relation to an application by the county council to potentially upgrade an existing bridleway on the Estate to a restricted byway. We chose ET Landnet after carrying out considerable research and enquiry, based primarily upon strong recommendations received from two separate third parties, together with our own assessment of Michael during telephone conversations. Michael proceeded to carry out a considerable amount of detailed work over a number of months, culminating in a very satisfactory agreed outcome with the county council. We would describe Michael as extremely professional, incredibly knowledgeable on the subject matter and very capable of conveying incredibly complex information in a very user-friendly way. We would not hesitate to ask Michael to act for us again.”

John Edwards on behalf of Howard Dyer, The Nutley Estate, Hampshire

We are too busy to keep our fingers crossed for the final announcement as we review more diversion proposals and issues relating to footpath claims. We cannot let our standards slip!

Please let us know if we can help you with your public path issues – call 0203 086 7657 or email me, Michael Wood mw@etlandnet.co.uk and we will try to help you too.


We are finalists in the Rural Business Awards 2017!

It has been an exciting few hours since we learned we had been shortlisted in the Best Rural Professional Services Business category in the 2017 Rural Business Awards – and now it has been officially announced we can share this great news with our clients.  

We know there are some great rural businesses out there so are privileged to get through the initial judging and be one of the five in the running for the Award.

Thanks are due to our great clients and for their recommendations – here’s just one:

We would describe Michael as extremely professional, incredibly knowledgeable on the subject matter and very capable of conveying incredibly complex information in a very user-friendly way. We would not hesitate to ask Michael to act for us again.

We remain committed to working with our landowner clients challenged by public rights of way.  We are always happy to talk through a problem and to find a solution.

You will find more about us on our website www.etlandnet.co.uk and you can always email Michael Wood at mw@etlandnet.co.uk for help.

 


Henley Royal Regatta. An excellent result.

We are delighted to have secured for the third year the temporary diversion of the footpath through Fawley Court making it possible for the owner to run the Fawley River Club and Akoya-Henley events during the Regatta week.

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Access along the River during the Regatta has always been contentious and starkly illustrates the issue between the public’s right of way and the ability of the landowner to manage their land.  The issue is longstanding for the Regatta itself, with the National Trail running on their side of the riverbank.

Below is an aerial view of the site from Google Earth showing how the Meadow usually looks, so you can see how it is transformed to host these prestigious events!

The footpath runs close to the riverbank where the impressive glass pavilion is set up for guests.  The diversion takes the public a little distance away from the site but they are still able to walk through.

Fawley Meadow

We work with a number of estates like the Fawley Court Estate providing them with advice and management services for their public paths.  It is an essential part of their land management to ensure compliance with the complex rights of way legislation.

We help landowners of all sizes with their public rights of way issues – you can contact us without obligation to see how we can help you

Call Michael Wood on 07796 958572 or email Michael mw@etlandnet.co.uk or complete the form below.

 

 


Buying a property with a public path through its grounds. Is it all doom and gloom?

A public right of way can have a dramatic impact on the value of a property, sometimes making it unsaleable.  However if you have fallen in love with a house and are willing to ask questions and do some research, then it might not be as bad as you think.  We’ve set out some pointers below.

Is the path on the correct alignment?  You might be surprised to know that some property owners have made changes to public rights of way without going through the formal diversion process.  It will be the line on the map that will be enforced, not an alternative.

Ground marked waymarks

Look out for signs which show where the path runs

Are there stiles or gates on the route?  You will need to be satisfied that these are “lawful limitations” and are recorded by the highway authority otherwise they are likely to be obstructions and you can be forced to remove them.  You can only get permission for a gate that keeps livestock in or out of your property.  The security of your pets or children is not a basis upon which an authority can permit you to have a gate, and a stile will rarely be authorised as a new structure.

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An authorised gate may require special latches

Is the path part of a promoted route?  You will need to ask or check on the Ordnance Survey’s published leisure maps where promoted routes are shown with diamonds.

Is the path well used?  Be sceptical when the seller says that they have never seen anyone use the path.  Even if that is the case, that does not mean that it will not be used in the future.

Walkers

Is the path fenced off?  The path might have been fenced off to stop the public and dogs straying, but any fencing must not obstruct the legal line and width of the path and there are rules about the fence height.  If in doubt, check with the highway authority.

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This footpath has been fenced on both sides across a paddock – but it is too narrow

Can you lessen the impact of the path on the property?  You may be able to divert the path away from the house or out of the garden or away from some change of use of the land if this improves matters for you.  Diversions are not straight forward but it is always worth investigating.  We recommend taking specialist advice.  And do bear in mind that diversions can take time to achieve.

definitive path

The footpath gave a great view into the garden of this house – it has now been diverted.

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We are standing on a public path – you can see into the windows of this house for sale.

 

It might be a matter of better management of the path.  Proper signs can help and a fence or hedging may be a good way to provide the privacy you need.  Bear in mind that if you plant a hedge it will grow sideways as well as up!  You will need to cut back side growth if it goes across the path.

 


 

Some of our clients have been able to benefit from diverting paths to improve their privacy and security.  As one noted to us “it’s just good land management practice to look after and enhance your property if you have the opportunity to do so.”


 

OUR KEY TIP!

Arrange to view the Definitive Map and Statement. 

The Definitive Map and Statement is the legal record of the alignment, status and other details about the path and it is this information which the highways authority will rely upon.  You will usually find how to see these documents through the “rights of way” pages on your county or unitary council’s website.

 

You can always contact us for advice – we can often give a preliminary view without charge and if nothing else, point you in the right direction.  It costs nothing to ask us!

Contact Michael Wood by email mw@etlandnet.co.uk or give him a call on 07796 958572

Or complete the form below:

 


The minefield of public rights of way

Two recent cases have demonstrated the potential minefield for landowner clients resolving public rights of way issues.  We’ve been glad to get them through these problems and to have them both say that our input was invaluable.

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In Hampshire, a relatively straight forward claim to upgrade an existing bridleway to a restricted byway ran into the huge complexity of the legislation when it emerged that the recorded route was on the wrong historic alignment.

On discovering during the investigation into the historic evidence that the route should actually run through ancient woodland, both our client and the council were agreed that this served no one’s purpose and that keeping the route on the existing alignment was the right thing to do.

To achieve anything, the first technical step would require a Modification Order to move the path back to the historic alignment through the woodland.  Such an Order might also seek to upgrade that route to a restricted byway, which our client would challenge.  We would then need a diversion order to move the route back onto the alignment currently recorded and used by the public.  There could be no certainty that either order would succeed in total (although it was likely that the route would be moved back into the woodland) so a solution had to be found.

And we have found one.  Working with the client and the council, there will be a restricted byway retaining the charm and characteristics of the currently used route.  It will take some further work to finalise the required agreements and orders but the public, the client and the council will have a clearly defined, sympathetic route and the significant expense to both the client and the council of public inquiries and potential challenges will be saved.

Meanwhile in Kent, we were called in to negotiate with the council over the availability of a public footpath which had a significant impact on our client’s estate but which had to be reopened.  Having made some initial demands of our client to open it to 2 metres in width, and to remove gates, we brought some direction to the discussions, pointing out that the route had no defined width.  The client was happy with 1.5 metres and this was agreed.

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More importantly we were able to argue that the gate that the client required was actually an improvement to the stile that formerly existed on her boundary and should be permitted as a lawful structure.  Again this was agreed and is now being implemented.  The client has achieved what she wanted and we have maintained a good relationship between our client and the council which looked at times to be strained whilst the issue was in dispute.

We will always fight our client’s corner but there are many situations where an early and knowledgeable intervention can help bring matters to a positive conclusion, saving time, money and anguish.

As always we are here to help!  Contact Michael Wood – mw@etlandnet.co.uk or call 07796 958572 or complete the form below: