Posted by Peter Foskett, Partner
Preventing development disruption by NIMBYs
When you are considering purchasing land for development, you’ll be aware that an application for planning permission will almost certainly provoke a NIMBY (Not In My Back Yard) reaction. Residents living nearby may try and find ways to prevent development …
When you are considering purchasing land for development, you’ll be aware that an application for planning permission will almost certainly provoke a NIMBY (Not In My Back Yard) reaction. Residents living nearby may try and find ways to prevent development of the land. To try and avoid this it’s likely that you will inspect the site for evidence of rights which might affect the land and could disrupt development if the adjoining landowners seeks to enforce those rights.
Rights by long user
A solicitor can examine the title and advise you what legal rights are detailed in it, however you may still encounter a problem as the law recognises that legal rights can still exist without being specified in the deeds. Most notably these are rights acquired by long user.
Even after thorough enquiries of the seller before buying you may still not find out about such rights, but under the purchasing contract you will be subject to them. This highlights the importance of inspecting the land to discover evidence of such rights but you must know what you are looking for!
To gain rights by long user, the right must be of such a character, degree and frequency of use so as to indicate that the person exercising it is asserting a legal and continuous right and that the landowner should take action to prevent its exercise.
A recent case (Orme v Lyons) has provided useful guidance about the ‘frequency of use’ in deciding whether the right had been established or not:
The access way was not the sole route to the property but was an alternative route. Originally it was used at least once a month but subsequently it was only used if the other route to the property was blocked (which was weekly). The access way was tricky to drive along and was more suited to a 4 X 4 vehicle. Although an ordinary car could drive along it this could only be done slowly and with caution.
It’s easy to understand why the owner of the affected land disputed the creation of a legal right. However the conclusion was that a legal right of way had been acquired (the access way’s appearance and the sufficiently regular use of it was enough to indicate to the landowner that a continuous right to drive over it was being claimed and should be resisted if the landowner did not want a legal right of way to be acquired).
What was important to the decision and provides helpful guidance is that the access way:
- was open at both ends
- was of a width typical of country lanes
- was generally bordered on both sides by hedges or buildings and
- had wheel tracks or ruts along its length.
So what are you looking for when you inspect the land?
You should look for any kind of evidence that someone is exercising some right over the land for the benefit of adjoining property. This will of course vary upon the nature of the right but some common ones are:
- In the case of a right of a way, tyre tracks, horse shoe prints or rutting are obvious things. More subtly is the layout of the land typical of a lane, bridlepath or footpath (i.e. hedges, fences or trees either side of land of a typical width).
- In the case of a right of light, windows in buildings overlooking the land.
- In the case of a right for pipes or cables crossing the land, it will be easy to see any cables that are above ground level. Many pipes and cables beneath the land will have markers (especially in boundary features) showing their location. Others will not and if small in diameter it will be difficult to see evidence on the ground of their existence.
- In the case of rights leading to a claim that the land is a town or village green, rutting of the land where people are repeatedly walking and dog mess.
In short any evidence of possible rights affecting the land should be treated with great concern and suspicion and investigated as thoroughly as possible.
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