Unstopping a stopped up road - Lambeth

Discussion in 'suburban75' started by shakespearegirl, Nov 11, 2011.

  1. shakespearegirl

    shakespearegirl just worked out taglines

    If anyone can offer any advice on this, it would really be appreciated.

    When we purchased our house, it became clear that there was an issue with how much of the back garden the vendors owned.

    An unused road had been taken over by our garden and 3 of the neighbours. The earliest record of this is 1998.

    In 2001/2002 the previous owner and Lambeth formally applied to have the road stopped up and this was done at Camberwell Magistrates Court. The court no longer have the records although they have supplied us with a statement confirming the case was successful and the road was stopped up.

    A few months ago, an architect acting on behalf of the adjoining property wrote to us asking us to restore the land to road as they wanted to develop the plot, currently 1 storey garages. We responded pointing out that the road had been stopped up legally, they then asked us to provide proof of this, but we hadn't responded to the latest letter.

    They have now applied for planning permission to build 6 x 2 and 3 storey houses on the plot. Access through the old road forms part of their application, and in their correspondence with Lambeth Planning they have pointed out numerous times their astonishment that we have grabbed the land and asked Lambeth to restore it. There doesn't seem to be any response to this issue from Lambeth.

    From what I've been able to find on-line, some councils have a policy that if a public highway is closed up, the adjoining neighbours split the land down the middle. I've not been able to find a policy from Lambeth.

    I can't find any cases when a road has been unstopped or an ex public highway has been claimed via adverse possession.

    We have an indemnity policy against the land being taken away from us and I've informed the insurers, but they are being very slow at coming back and not terribly informative.

    We are going to speak to a solicitor and planning experts, but wondered if the stopping up might be an argument against the development as they have designed their whole scheme around being able to access some of the properties through the stopped up road.

    Many thanks if anyone has any ideas.
     
  2. Puddy_Tat

    Puddy_Tat hmm

    My initial thought (I've had some involvement in local authority highways stuff in the past) is that there's 3 different issues here, as far as the bit of 'road' is concerned there's the question of whether the road is still a public highway, then there's who owns the land. Both of which are (legally) separate to the question of planning permission.

    You can still have land that is owned by the local highways authority even if it's not currently being used as highway. If nothing was put on paper at the time transferring ownership of the land, I'd have thought you may be on thin ice, although it's possible that the length of time you and the neighbours have been "squatting" will count in your favour.

    The extent to which Lambeth's highways people, planning people and legal people talk to each other is not known to me, but you may want to see if the highways people can shed any light on it if you've not already pestered them. There may be an office looking after rights of way.

    Whatever happens, I can see this making some money for lawyers. :(
     
  3. shakespearegirl

    shakespearegirl just worked out taglines

    Thanks Puddy

    It was officially stopped up by Lambeth in 2002, they were happy to do this as the existing road was being used by prostitutes and dealers.

    I have a signed statement from the previous previous owner, who says that he extended the boundary fence in '98, so if it was a normal adverse possession case we would be over the 12 year threshold for unregistered land, but I can't find any info on adverse possession of a public highway.

    None of the current owners were here when it happened.

    We do have other planning arguments, but they won't be able to do the development as it stands without the road being restored.

    Will try and speak to the highways people.
     
  4. bi0boy

    bi0boy Power User

    Don't you have a title plan?
     
  5. shakespearegirl

    shakespearegirl just worked out taglines

    We do but it shows it as unregistered land. The insurers have just told me they won't cover this or get involved and we should seek legal advice
     
  6. bi0boy

    bi0boy Power User

    Sounds to me like the solicitor you used to make the purchase didn't do their job properly.
     
  7. Ground Elder

    Ground Elder Well-Known Member

  8. shakespearegirl

    shakespearegirl just worked out taglines

    Thanks Ground Elder will give them a try.

    Getting lots of good advise from gardenlaw.co.uk and I think we'll be appointing a solicitor and planning expert this week.

    Bioboy, our solicitor was fine, it seems to be a very very complicated situation and we can't work out whether the developers are just trying it on as there seems to be no precedent for re-opening a stopped up road, it ceases to be a road once its been closed.
     
  9. Rushy

    Rushy AKA some / certain posters

    "Once a highway, always a highway."

    The case of R (on the Application of Smith) v Land Registry was a Court of Appeal case, and
    looked at whether someone could claim adverse possession of a public highway. Mr Smith
    had parked his caravan on an unregistered, unsurfaced minor road for over 12 years and
    had erected other structures, and maintained the verges and hedges. He had not obstructed
    the highway.
    The Court of Appeal could find no case law which supported the old legal adage ‘once a
    highway, always a highway’, but nevertheless was unwilling to dispense with it. Mr Smith’s
    claim was therefore rejected on legal and public policy grounds. It is clear that any claim to
    adversely possess a public highway is unlikely to succeed in the near future.

    I imagine it will hinge on finding evidence that it was stopped up. Have you contacted Highways? They should have a record.
     
  10. shakespearegirl

    shakespearegirl just worked out taglines

    We have a copy of the statement from Camberwell Court stating that the stopping up action had been successful.

    Left messages for Highways and Planning, no one is returning our calls.

    Looks like the period for responding will have to be extended as they haven't notified lots of the neighbours, including one whose garden they want to nab...
     
  11. TopCat

    TopCat Gone away, no forwarding address

    I find it hard to sympathise with you given you just nicked the land. I doubt you would appreciate it if a bunch of people had set up a shanty town in the road before you got it.
     
  12. TruXta

    TruXta tired

    Did you even read the OP? :facepalm:
     
    weepiper likes this.
  13. TopCat

    TopCat Gone away, no forwarding address

    Yeah in detail.
     
  14. TopCat

    TopCat Gone away, no forwarding address

    It matters little who did it, the previous owners or the current ones.
     
  15. shakespearegirl

    shakespearegirl just worked out taglines

    Top Cat, I did not nick the land. It was a dead end road that was being used by prostitutes and dealers.

    It was closed off by Lambeth and the previous owners on the grounds that it was no longer required.
     
  16. TopCat

    TopCat Gone away, no forwarding address

    Disingenuous.
     
  17. shakespearegirl

    shakespearegirl just worked out taglines

  18. TopCat

    TopCat Gone away, no forwarding address

    It was not part of the owned property you bought and you know this. People try this sort of thing all the time. Extend the garden onto land that ain't theirs.
     
  19. shakespearegirl

    shakespearegirl just worked out taglines

    No, but it was a stopped up road that had been done with the full co-operation of the council. In fact Lambeth took the whole thing to court.

    So, why should a developer be able to re-open it purely for their convenience. The property can be developed without re-opening it, they just want to squeeze more houses onto the site. The development is 4 times the Lambeth average in terms of density.
     
  20. Rushy

    Rushy AKA some / certain posters

    Lambeth can be awfully difficult about assigning responsibility for answering questions like this. The most reliable way of getting an answer is from Highways is by putting a well worded FOI request through through whatdotheyknow.com but it will be too slow for the purpose of the planning application.

    Email the planner in charge of the case and copy in to TPAC@lambeth.gov.uk so that you have a record of correspondence. Keep emails brief, clear and unemotional/impersonal.

    Put an objection in on the basis that there is no public highway access to the site. Back this up with a copy of the court stopping up order and any other material including their proposed plans marked up to show the closed up highway and gardens.
    Also, advise the council that as far as you are aware their consultation has not been broad enough for the reasons you highlighted.

    Bear in mind that, if the highway is stopped, then the developer will still not have legal access even if planning were granted. So planning permission itself is not the final hurdle for the developer.
     
  21. TopCat

    TopCat Gone away, no forwarding address

    it was stopped up road but this land was not yours. Given your approach you should be grateful the developer is not trying to build flats in your back garden.
     
  22. shakespearegirl

    shakespearegirl just worked out taglines

    Top Cat, what is your problem with me?

    This all took place years before I purchased the property. Was done with the full support and involvement of the council and local residents.

    It was an unused road that went no-where, being used for drug dealing and prostitution, not some green and pleasant parkland.
     
  23. Kanda

    Kanda Diving wanker

    He's got a point, the land wasn't yours. Why do you want to stop the development?
     
  24. TopCat

    TopCat Gone away, no forwarding address

    Why don't you just put the fence back to where your deeds show your boundry to be?
     
  25. TruXta

    TruXta tired

    Wow, this is weird. So these developers are now the good guys, TopCat?
     
  26. TopCat

    TopCat Gone away, no forwarding address

    It's not about developers. the greedy neighbours are just as bad if not worse.
     
  27. TruXta

    TruXta tired

    So nothing to do with what the road was used for before the stopping order? All to do with greedy property owners? Found this btw from the Lambeth website:

     
  28. TopCat

    TopCat Gone away, no forwarding address

    Given the waiting lists for housing very vulnerable people in Lambeth, the concept that home owners can just take over the Councils land sucks.
     
  29. Kanda

    Kanda Diving wanker

    So a stopping up order allows a road to be developed on... Or am I missing something??

    But the OP is objecting to it being developed on (her borders have also crept onto it?)...

    Does the OP know what sort of housing it will be?
     
  30. TopCat

    TopCat Gone away, no forwarding address

    She wants it to remain part of her enlarged garden.
     

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