I am not going to be able to give you a definitive answer to this
and when I explain the law, you will know why.
The original fence must have been in place for 20 years in breach
of the easement before it can stay in place. The fence however was removed some
time ago but I don't know when.
So, if the court looked upon this as being a replacement fence
because one was coming out and the other one was going in, could probably put
it up depending on how long the original fence had been in place. However it
would have to go up in the same place and there is an argument to be had as to
whether it is a new fence or a replacement fence and that would depend on the
gap in between the old fence and the new fence. There is no case law on this
and I think a 12 month gap would probably be sufficient to say that it was a
There are then two issues with regard the fence which you propose
and in that respect it doesn't matter whether it's on the original boundary
line or setback.
The first thing I will mention however is that if it is going on
the original boundary line, you can only do it with consent although, if,
referring back to what I said earlier, you have the right to put the fence
there, the neighbour has no right to object. However if they do object, you are
faced with a court application.
Assuming this is not a replacement fence is a new fence, it doesn't
matter whether it is setback 50 mm to put it just on your side or 300 mm, the
legal test, if they are allowed to grow over the whole of this area is as to
whether this friend causes a substantial interference with their right-of-way.
It doesn't matter that they are able to get past and get back into
their garage, what matters is whether the interference is substantial.
For example, a wheelie bin placed on a 24' wide drive is not a
substantial interference. It may be a nuisance but it is not substantial
Placed on a 10 foot wide drive it would be a substantial
So it would be necessary to look at everything in detail and even
then it would be for the court to decide whether your fence was indeed a
There is another issue which you are creating by putting the fence
where you are putting it and that is in respect of the piece of land which you
are in effect losing by moving the fence over.
After 10 years the owner on the other side of the fence is
probably able to apply for adverse possession of that piece of land if you no
longer have access to it but he does and in that respect, you are creating a
problem with regard to any future sale.
By all means go ahead put the fence up because at least now you
are aware of the law. If the neighbour doesn't like it he is faced with taking
you to court for obstructing his right-of-way.
If it is an area, where you are putting the fence up, but he does
not have any need to ever go over ever and has never been over it ever it is
unlikely that this would be a substantial construction
Does that answer the question? Can I assist further or answer any
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