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Thomas
Thomas, Lawyer
Category: UK Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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Hello, we are in a position whereby there is a driveway that

Customer Question

Hello, we are in a position whereby there is a driveway that runs along the side of our house. This driveway is adjacent to ourselves and no 10. There is also a series of gardens whose bottom edge runs long this driveway. For the last 40 years the driveway has been used by our property to access the bottom of our garden as parking and also by four properties whose gardens edge onto it. The new owner of the other adjacent property to the opening of the drive has put a fence up across the driveway in line with the edge of his property. He has said that as the driveway is owned by no-one and is therefore common land no-one can drive across it as it contravenes the road traffic act. Is this correct? Who do I contact to find out if there are any bylaws applicable to this strip of land?
Thanks in advance
Submitted: 2 years ago.
Category: UK Law
Expert:  Thomas replied 2 years ago.
Hi,

Does the fence impede your right of way over the driveway, or that of any others who have used the driveway as a right of way?

Tom
Customer: replied 2 years ago.

Yes it blocks it in line with the bottom edge of his property. We can no longer access our parking nor can the other people who have used it. He says as it is common land it is an offence to drive over it anyway. The current situation is that we can park on the driveway itself in front of the fence along with his tenant, however as it is narrow we have to co ordinate with them who needs to be in/out first. The others who have used it can no longer access it at all.

Expert:  Thomas replied 2 years ago.
Ok.

Does he own the land over which he has obstructed?

Tom
Customer: replied 2 years ago.

No he doesn't it is common land - on the land registry as no mans land. The right of way on the deeds is for owner, tenants assignees on foot or by horse and carriage, this in our deeds, his deeds and the deeds of the houses whose gardens back onto the driveway. He maintains that this does not translate to a motor vehicle and as its common land the Road Traffic Act supercedes all previous acts and states that it is an offence to drive over common land.

Expert:  Thomas replied 2 years ago.
Ok.

Do you require right of way only on foot, or by car aswell?

Tom
Customer: replied 2 years ago.

By car is what we and the other users have had for the last 18 years in ours case and 40 in some other cases. There is a garage at the bottom of our garden and at the bottom of one of the others we can no longer access. I am concerned that if he is correct about the common land there is no where I can go with this.

Expert:  Thomas replied 2 years ago.
Hi

Thanks for your patience.

He is correct to the extent that if the land genuinely is common land then it would be in contravention of the road traffic act to drive cars across it and would also prevent you claiming a right to drive.

The key, then, is establishing whether or not the land genuinely is common land. Common land is historic concept. Common land is land which has rights in common over it. Rights in common are usually things like grazing, taking wood/peat/turf/fish etc. The fact that the land is subject to rights of way in favour of you and others does not mean that it is common land. Classification of common land has to derive from somewhere else (like the aforementioned rights).

I would start by enquiring of the local authority to see if they classify the land as common land, providing a map identifying. If they do then you probably can’t drive across it.

If they don’t then I would write (with other owners) to the person stating that the local authority do not list it as common land and inviting them to proffer other evidence of it being common land, stating that if he does not do so satisfactorily then you will request the obstruction is removed within 14 days of request and if it is not then you and others will apply for an injunction from court requiring the same and shall also claim costs.





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Kind regards,


Tom
Customer: replied 2 years ago.

Sorry to be a pain I just want to clarify, If it is not classed as common land but is not owned by anybody what is it defined as? I want to make sure I get this right as he is a property developer with a strong financial position and I have limited resources.


Thanks

Expert:  Thomas replied 2 years ago.
Hi,

If it is not commonland or adopted by the local authority as a highway maintainable at public expense then it will be owned by someone. Neither of you may be able to trace them but it will be owned nevertheless.

You need to pool reources with the other owners and check with the local authority. If they confrim that they do not have it registered as common land then you need to invite the person to produce evidence. If they do not then you should consider (with other owners) seeing a local solicitor for a consultation and taking the official copies for the land and the results of the local authority enquiry and any other evidence tendered by the person to them to ask for their opinion on the classification of the land.

If they confirm that they cannot see that it is classified as commonland then your only option is to apply to court.

Trust this clarifies, please remember to rate my answer.

Kind regards,

Tom
Thomas, Lawyer
Category: UK Law
Satisfied Customers: 6650
Experience: BA (Hons), PgDip, Practising Solicitor
Thomas and other UK Law Specialists are ready to help you
Customer: replied 2 years ago.

Many thanks I am in contact with the council at present. You have been really helpful

Expert:  Thomas replied 2 years ago.
You're welcome.
Tom

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