Site easements for mortgage

[^woody^]

You have to be careful this neighbour doesn't have more land, I don't know how it works in that instance.

Requiring half the costs of any alternatives would be a starting point

 

[^woody^]

I would be very surprised if sightlines have not been considered or conditioned by planners

 

[tomfe]

If you need to add access to a site from a main road, they do take sight lines into consideration.
I was at a site the other week where they had brought a property with access to the road and knocked it down as the only other access was on a bend.

 

[Footsoldier888]

I would be very surprised if sightlines have not been considered or conditioned by planners

How it works is this - when you apply for pp a request is generated to the Highways Agency and they come along and do a report to the council. But the HA and the council are only concerned with the functionality of the access and the sightline, not the ownership of the land.

If they come along and find a tree in the sightline/visibility splay, I think they would order removal by way of a condition that must be discharged before building can start, along with the site set up and often a tyre washing facility plus work to the drive to prevent mud getting all over a fast road.

The access and visibility splay must be sorted before building can start for obvious safety reasons, either the neighbour has another access point, perhaps from his own house, or he is in breach. I would guess he probably has another access though.

It is not the council's job to refuse pp just because you don't own land over a visibility splay. I know this because there is a 2.5m development just round the corner from me where this is the case. The developer doesn't own the threshold between the end of their land and the pavement, which includes the sightline. The area they are building on is a number of back gardens but years ago someone severed this sliver to stop this very thing. The only problem is no one as yet has been able to find the owner! So someone is sitting on a hugely valuable ransom strip. Anyway the council were made aware of this but the pp was still passed, with the developer presumably insuring against a claim.

So as long as the Highways Agency report back that the visibility splay and access are acceptable to them the application will proceed, with conditions.

 

[Footsoldier888]

Just to be clear, the reason for how it works like this is because we are talking about easements/wayleaves here not land ownership. It is always up to the developer to sort these out, either before or after the application.

 

[Footsoldier888]

Roger btw if the worst does happen and they start chopping things down on your land what you have to do is go for a court injunction. In your shoes I would ask my solicitor about this so that you know what to do. It might even be worth engaging a surveyor who deals with land matters to establish you definitely own this land ie the physical measurements stack up. It may seem like overkill but high court injunctions are very expensive so you need to be 100% sure before starting one.

You should also photograph the land. If you do catch them red handed the police can't help much because they won't know whose land it is and it will be a civil dispute. However they most likely would ask them to stop.

If you think they might try it on I would send them a solicitor's letter saying you will apply for a court injunction if they cut down anything substantial on your land.

The trouble is some people think if they resolve the sight line in terms of cutting stuff back it will make the access legal, which ofcourse it won't.

 

[^woody^]

It is not the council's job to refuse pp just because you don't own land over a visibility splay

It is. But it's different parts of the council that get to decide depening on where the application goes to.

Planning permision can not be granted on the basis of the applicant having to do something that is outside of their control.
This is a fundamental reason for the majority of refusals for drives and access routes. If the DETR guidelines are not met, then the Highways report must state this (although does not decide the outcome). Then, the planners must consider this, and only condition an approval if the applicant can carry out the condition by their own means.

In other cases, where planners aren't involved and the Highways dept has the authority, then they will refuse applications/requests if guidelines can't be met. But as part of the request, they can't require any sort of condition to maintain things such as sight lines.

 

[Footsoldier888]

I will have to consult my Estates Gazette book on planning law Woody! It is infact a good read, been some cracking cases over the years.

Well my understanding of it is that planning permission is not permission to build until the pre building conditions are discharged. Once the Highways Agency have submitted their report anything they order becomes a condition, which must be discharged prior to work starting. But the HA's job is to come on site and measure all the sightlines etc etc, not to check who owns the land or if an easement is in place.

I believe it is a civil matter as to whether any easement has been purchased. I don't believe it is the council's job to ensure the condition can be carried out by the applicant, only that it IS carried out. There is a big difference. I believe that getting the easement is the applicant's responsibility. After all, as I said above, it isn't always easy to trace the owner so it could take a long time to do that.

 

[^woody^]

I will have to consult my Estates Gazette book on planning law Woody! It is infact a good read, been some cracking cases over the years.

Well my understanding of it is that planning permission is not permission to build until the pre building conditions are discharged. Once the Highways Agency have submitted their report anything they order becomes a condition, which must be discharged prior to work starting. But the HA's job is to come on site and measure all the sightlines etc etc, not to check who owns the land or if an easement is in place.

I believe it is a civil matter as to whether any easement has been purchased. I don't believe it is the council's job to ensure the condition can be carried out by the applicant, only that it IS carried out. There is a big difference. I believe that getting the easement is the applicant's responsibility. After all, as I said above, it isn't always easy to trace the owner so it could take a long time to do that.

Yes thats how it works for things that can be conditioned and the applicant can do. But the condition has to be reasonable and acheivable in the first place.

It cant be a condition that relies on a third party neighbour agreeing to do (or not to do) something.