Easements

[neddyw]

Hi folks,
When the houses behind my mums were built in 1990 a land drain was installed behind my mums house and her neighbours as the land that the new houses were built on was raised upto 1.5m and this posed a risk of flooding to the existing stone cottages. The builders, strict instructions from the council and the National Rivers Authority created a maintenance strip between the old houses and the new under which the drain was installed. This strip was to protect the drain and to allow both sides to access their fences/hedges and so a gate was installed at the end of it. When the end house on the estate was sold the builders made what appears to be a mistake in that they included the section of the maintenance strip behind that house on its title deeds (it is excluded from the deeds of the other houses that border it). The house has now been sold on and the new owner has extended his garden over the maintenance strip, planted trees along it and is refusing to allow access over it. His title deeds state that he must not remove or alter his fence line but in extending his garden he has done and had the cheek to claim my mums neighbours fence as his!
Do we have any legal right to access this strip of land? Is it possible to 'create' an easement?

Any advice greatly appreciated

[The Builder]

I would take it up with the local Planners. It's quite possible that they own their part of the strip. It doesn't alter the fact, though that the original planning permission stated that it should be a maintenance strip. They "might" have needed planning permission for change of use into a garden.
I would guess the problem would arise when you needed access over his land for maintenence............ or worse, you need to dig up his garden to repair the drain!

[neddyw]

Been on to planners but complete waste of time, they cant offer any help or advice as they consider it to be a private legal matter. It wasnt part of original planning permission as flooding was not considered a problem even though the land they were building on was a flood plain which was usually under water for most of the winter. As usual, local people with local knowledge were dismissed as nimbys and it was only after lots of problems on the site such as the main road adjacent to the site collapsing, the gardens of 3 existing houses collapsing, the river flooding and washing a dumptruck away, the driven piles causing major cracking to another house etc did the council start to listen to residents. We have tried to find out who is responsible for the maintenance of the drain but no-one appears to.

[bushbaby_de]

I would try explaining the situation to your planning department again as it appears to me that an unauthorised change of use of the land has occurred, as they have extended their residential curtilage over land that was not part of the residential plots.

[333pjb]

This gets you into the complicated 'civil land disputes' area that usually takes years to 'fight' and ends up most likely with nobody satisfied but everybody out-of-pocket.

I take it it is well past the 'try to sort out amicably' point. You will not get much support from local councils as they don't view it as their problem. You could try your local water utility company as they will have the access need if anything fails.
If you have access to the Land Registry site you can obtain a copy title deed and any registration documents for £3 each (electronic pdf). This will allow you to inspect the exact land area the way it was drawn (and date if it was modified). You could then write to the land registry to put on record your concerns.
If your issue is with the access the only real direction you have is through civil litigation - be aware though this can be expensive for such a small gain.

Have you checked if you are covered by "family legal cover" on your house insurance? I was on mine (different situation), but 5 years later and arround £6.5K spent I'm still waiting.
It may be worth another try through notifcation to your neighbour via a solicitors letter stating you have a concern, this will only cost £25 or so and stands as legal proof your have raised the issue as of this date. This may jolt your neighbour into a rethink (but may also make them dig their heels in more) - so be prepared. You should be rock-solid with your claim however so that the solicitor is convienced that your position is correct (having all the facts).
Consider exactly how much this issue is important to you (time and money) and see how your neighbours, (those affected), feel. Will it affect the value / insurance rating of your house?
Most of all be realistic - there will be very little assistance from anybody you don't pay big-bucks to and you may find you have a long fight all on your own.
Good luc