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Business Clinic: Does the planned house have a right of access?

Whether you have a legal, tax, insurance, management or land problem, weekly farmersBusiness Clinic experts can help.

Here, Jonathan Thompson, senior partner at law firm Thrings, advises on driveway use rights.

See also: Business Clinic – do I need to have a durable power of attorney?

Q. In 1965, part of one of our fields, which we acquired with the deeds in 1974, was incorporated into a lane to widen it to provide vehicular access to three properties.

One of the properties, a smallholding, has just been sold, the son of the former owner retaining land on which he has applied for planning permission for a house.

The current owners of the three properties listed in the agreement are against this development. We wonder if this planned new development has a right of way.

We would appreciate your feedback on how we position ourselves as licensors in this situation.

A. This is a classic property transfer riddle, with a number of possible answers leading to the same result.

Did the 1965 document that created the use of the track, both legally and practically, give specific information on how the track can be used?

So, was it related to a particular use of the land which is accessed by the way?

In answer to your question, I assumed there was farmland and some of the three properties were houses.

First, in 1965, was the use of the field as a road a cession of land or a right of way? In the first case, has any type of use clause been imposed?

If the right to use the track was granted to one or three owners by a deed of grant, what was the exact use in the deed of grant?

It may be that it is a right granted to a person and that he has sold land with the benefit of the right to use the track.

Both lead to the same question: does the document authorizing the use of the track specify the type of use? This can be farm vehicles only and/or access to a house or a specified number of houses.

Second, was the use of the road and the land it accesses different in 1965 from today? As the land is not yet developed, it must currently be agricultural land.

Significance of authorized use

The type of use permitted is important, whether it is authorized by a use clause in a transfer or a specific use in a deed of grant. For a deed, there should be a plan showing the area to be accessed above the lane.

If the lane is owned by one or three owners, there may be a clause stating that the lane can only be used for agricultural or residential type vehicles.

Some people with a right of way attempt to expand this use. The law has a red light approach to such attempts. If person A grants person B a right for a specific use, that’s all they have.

Attempts to widen a right will be met with a large “stop” sign.

If the right granted was specifically for access to farmland and two houses for 57 years, then that is its use: no more than three owners.

However, if the right was granted for broader “agricultural and residential” purposes, this is not accurate in terms of the number of people likely to use the lane.

In a recent case, it was considered whether a general use clause (“to access and from the property”) can be limited to generic use when created. In this case, it depends on the current and planned destination of the beneficiary land in 1965.

The general presumption is that the user of a right of way for a specific use cannot modify this use without the authorization of the owner of the access land.

This is done by an act of modification of the original act granting the use.

Planning permit problem

In the context of the landscaping application, I recently experienced a similar case while acting on behalf of the owner of the special purpose access.

The access user wanted to change the use of his land in a diversification project.

The local developers wanted to see that the right of access supported the new use, which it did not, and this had an impact on their decision to refuse the development.

In summary, if the smallholder only has access for agricultural purposes, it would not support residential development of his land.