New development – is there a right of way?

There has been a recent case which is a good reminder that one must always ensure that a right of way that exists to an existing building also extends to a newly constructed building.

In the case of Parker v Roberts (2019) planning permission was obtained to build a new 5,000 square foot house on a building plot which formed part of a garden to an existing house. Access to the existing house and garden were via a private road over which the homeowner had a right of way. The private road was owned by neighbours who also used the road.

The neighbours argued that the landowner had a right of way which permitted access to the existing house and garden but the right of way did not extend to the proposed new house to be built on the building plot.

The Court of Appeal considered various documents purporting to grant rights on the title to the existing house and building plot and also whether or not there were any implied rights. The conclusion reached was that benefit of the right of way did not pass to the building plot. As a result, the owner of the existing house was not able to construct the new building in the garden.

This case reminds us of some very important issues which need to be considered with rights of way. These are:

1. Any right of way to be granted must be drafted by reference to a Land Registry compliant plan.
2. One must consider whether the right of way only benefits the land as it is developed as opposed to a new development. For example, if there is reference in the original grant of the right of way to “a single residential dwelling and ancillary outbuildings only” it will only be for the existing building and not any new building.
3. The extent of the land which benefits from the rights in question must be clearly delineated on the plan.
4. The safest assumption to make is that implied rights rarely result in a comprehensive outcome for either seller or buyer.

The case is also a reminder that even before obtaining planning permission, a very careful check should be undertaken to see whether or not proper rights of access are available for any new building to be constructed.  As the case confirms, not having proper access to a building plot will prevent the development happening and if the development does happen, then the new building constructed will be unsaleable due to the lack of a right of way.

The same issue applies in relation to the construction of new services for the new building where clearly there will need to be a right to run these to the nearest adopted highway.

If you have any questions regarding this topic, please contact Stephen Brower, or any member of the Property team.

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