Business Clinic: Does planned house have right of access?

Whether you have a legal, tax, insurance, management or land issue, Farmers Weekly’s Business Clinic experts can help.

Here, Jonathan Thompson, senior associate with law firm Thrings, advises on rights of use for an access lane.

See also: Business Clinic – should I have a lasting power of attorney?

Q. In 1965 part of one of our fields, which we acquired with the deeds in 1974, was incorporated into a lane to widen it to provide vehicular access to three properties.

One of the properties, a smallholding, has recently been sold, with the son of the previous owner retaining a field on which he has applied for planning permission for a house.

The present owners of the three properties written into the agreement are against this development. We are questioning whether this intended new development has a right of way.

We would appreciate your comments as to how we stand as grantors in this situation.

A. This is a classic conveyancing conundrum, with a number of possible answers leading to the same outcome.

Did the 1965 document which created the use of the lane, both legally and practically, give specific information about how the lane may be used?

Then, was this linked to a specific use of the land which is accessed by the lane?

In response to your question, I have assumed there is agricultural land and some of the three properties are houses.

First, in 1965 was the use of the field as a lane by a conveyance of the land or a right of way? If the former, was a type of use covenant imposed?

If the right to use the lane was granted to one/three property owners by a deed of grant, what was the exact use in the deed of grant?

It may be that it was a right granted to one person and they have sold off land with the benefit of the right to use the lane.

Both lead to the same question: does the document allowing use of the lane specify the type of use? It might be for agricultural vehicles only and/or access to a house or specified number of houses.

Second, was the 1965 use of both the lane and the land which it accesses different to today? As the land is to be yet developed, it must currently be agricultural land.

Importance of use allowed

The use type allowed is important, whether permitted by a use covenant in a conveyance or a specific use in a deed of grant. For a deed of grant, there should be a plan showing the area to be accessed over the lane.

If the lane is owned by one or three property owners, there may be a covenant stating that the lane can only be used for agricultural or residential-type vehicles.

Some people with the benefit of a right of way try to enlarge that use. The law has a red light approach to such attempts. If person A grants person B a right for a specific use, that is all they have.

Attempts to enlarge a right will be met with a big “stop” sign.

If the right granted was specifically for access to agricultural land and two houses for 57 years, then that is its use: no more than three property owners.

However, if the right was granted for wider “agricultural and residential” purposes, that is unspecific in terms of how many people might use the lane.

In a recent case, it was considered whether a general use clause (“to access to and from property”) may be limited to the generic use when created. In this case, that depends on the current and intended purpose of the benefiting land in 1965.

The general presumption is that the user of a right of way for a specific use can’t change that use without the permission of the landowner of the access land.

This is done by a deed of variation of the original deed granting use.

Planning permission issue

In the context of the smallholder’s planning application, I recently experienced a similar matter when acting for the owner of the access with a specific use type.

The access user wanted to change use of his land in a diversification project.

The local planners wanted to see that the right of access supported the new use, which it didn’t, and that had an impact on their decision to refuse planning.

In summary, if the smallholder has agricultural use access only, that would not support a residential development of their land.