Visibility splays across unregistered land

[edsr]

Hi All,

 

If we put in some access (private driveway) to a road that required visibility splays across some unregistered land, what would be the best way forward?

 

Presumably some form of insurance would be an option? Also wondered if there was any way to acquire the land. It’s just scrub at the moment. 

 

Any help very much appreciated. 

 

Thanks

[Jeremy Harris]

Interesting question.  If the land has no known owner, or at least none that can be found after a reasonable search, then using it for a visibility splay does present you with some potential issues.  I'm assuming that this is a new access, and that you need the visibility splays in order to comply with a condition imposed by highways (yell if that's a wrong assumption).

 

The big risk is that as soon as someone finds out that you must be able to control visibility over that land there is an incentive to trace the owner and acquire it, in order to be able to ransom you for using it as a visibility splay, as the land has gone from having little or no value to potentially a pretty high value (could be worth a fair chunk of the value of your whole plot and build).  The best example of this I can recall related to a company that traced the owner and purchased a narrow strip of grass verge in front of a row of houses somewhere near the New Forest (I think) a few years ago.  That company demanded tens of thousands of pounds from each householder, decades after the houses had been built, to grant them the right of access over this narrow strip of land.  It seems that the company involved are specialists at doing just this sort of thing, and are very adept at tracing ownership and acquiring land in these sort of circumstances.

 

One option is just to go ahead, erect a low fence around the land, keep it tidy and acquire beneficial use of it, in the hope that no one will do anything.  In all probability that may work, and if you can show that you've had exclusive beneficial use of it then you can probably claim adverse possession and get to keep it.

 

As to whether you can get insurance to cover this I really don't know.  I think you might be best advised to seek legal advice, as whilst you can ensure against most risks, there are definitely things that you cannot insure against, one being unlawful use.  If, for any reason, your use of that strip of land was deemed to be unlawful (hard to see how, but I'm not a lawyer) then you may not be able to insure against it being blocked.

 

The other point is whether it's just the visibility splays that would be on unregistered land or whether the access would, too.  if so, then that opens up another can of worms, potentially.  Being unregistered isn't the same as being not owned, it just means that the owner isn't recorded with the Land Registry.  There is still a fair bit of land in the UK that isn't registered, I believe, as usually registration only happens if the land has been sold since registration became compulsory (around 40 or 50 years ago IIRC).  We recently had a problem tracing the ownership of a strip of unregistered land in our village, that runs between the stream and a lane.  It took well over a year to trace it back to a local estate, that thought that they had sold all of the plots in the village in 1915.  For whatever reason this strip was missed out of the estate sale, and today it still belongs to that estate (so they have to pay to keep it tidy and control the weeds etc in the stream).

[edsr]

Thanks for the insight here and a very helpful response. 

 

The first assumption is correct BTW but the second (about access itself being across unregistered land is not). 

 

Ill see see if I can find a company to trace the owner and go from there I think. The other suggestion about assumed ownership is a great idea too. 

[Jeremy Harris]

Having access is a big plus, and removes much of the incentive for any of the companies that go around looking to acquire ransom strips, I suspect, as the value just as a visibility splay is a fair bit less than as an access strip, I think.

 

One thing I've just thought of is if there is a requirement that you have to be able to ensure that visibility is maintained over that land.  Sometimes LAs have written conditions that require there to be a legal agreement with the landowner to this effect (something along the lines of not allowing anything higher than 1 metre for a distance of X metres in front of a designated visibility splay line).  Hard to deal with that if the owner cannot be traced, perhaps, and that may be where some form of insurance might work, perhaps with you undertaking to ensure the area is kept clear in order to satisfy the planners.

[joe90]

How wide is this bit of land?. When we had a fight using an access that we had permission fir many years ago the “verge “ (country road with no pavement) is deemed as council land, in olden days it was the equivalent of a pavement, somewhere fir pedestrians and horses to  use and the private land started at the hedge, wall, ditch or fence. We just had to confirm that we would not let anything grow higher than 500mm (I think).

Edited September 21, 2019 by joe90

[MikeSharp01]

Planning conditions dont have an infinite life IIRC, if they were then double glazing would be a problem as the original  design had single glazing. So just lay out the splays and once you build and get Building control sign off perhaps you need not worry about what happens on the land. No one is entitled to a view after all. Also right of use is not the same as ownership so once you have been driving over a strip for a given period you gain the right to continue I believe.

[ProDave]

I faced this issue.

 

The first draft from Highways during my planning application said I must provide 90 metre visibility plays and "demonstrate control" over that land used for the visibility splays.  That was not possible as that land was 2 neigbours unfenced front gardens.

 

I discussed it with highways, and largely because another application in the same street had been passed with less onerous requirements, they reduced it to 60 metres visibility and removed the "demonstrate control" clause.

 

I discussed what should happen in the event a neighbour for instance plants a big bush that blocks the visibility, he said to contact highways, as in the case of unfenced land, they can exercise control over the first 3 metres from the road and deal with the obstruction.

 

Note to everyone else, if you don't want highways cutting down your bush, put up a fence so it is no longer unfenced land.

[Temp]

5 hours ago, edsr said:

Hi All,

 

If we put in some access (private driveway) to a road that required visibility splays across some unregistered land, what would be the best way forward?

 

Presumably some form of insurance would be an option? Also wondered if there was any way to acquire the land. It’s just scrub at the moment. 

 

Any help very much appreciated. 

 

Thanks

 

 Buying the land... You have only two options I can see...

 

1) Find the owner somehow and make an offer. Some ideas on how to do that from the land registry..

 

https://hmlandregistry.blog.gov.uk/2018/02/05/search-owner-unregistered-land/

 

2) Fence it off "to the exclusion of all others",  wait 12 years and claim it under adverse possession. As its not registered the land registry won't be able to contact the real owner to warn them so good chance this might succeed provided you meet the strict conditions for claiming the land..

 

 https://www.gov.uk/government/publications/adverse-possession-of-1-unregistered-land-and-2-registered-land/practice-guide-5-adverse-possession-of-1-unregistered-and-2-registered-land-where-a-right-to-be-registered-was-acquired-before-13-october-2003

 

 

[Ferdinand]

You are playing at least 2 games here - to prevent financial cost later or to make sure that you create / retain a viable driveway wrt to the planners, planning conditions etc.

 

I can comment on the former. If you have been using it for a period (say a year or more) and supply a Statement of Truth, an indemnity policy may be possible via your solicitor to protect you from financial loss if something appears out of thin air that buggers you later. That is, if you create an entrance which relies on that visibility splay, use it, and someone does something to undermine the splay later - financial loss you suffer (eg loss of value of house) may be insurable as you are covering an uncertain event. That could be used to cover the lower sale price that will result when you sell if your neighbour has poleaxed you, or potentially financial loss if you have to buy them off, or if your house falls in value wrt to the mortgage.

 

In these circs, you need to avoid your uncertain event become a more likely event until after you have insured against it, and this would rely on you not investigating too far and getting it past planning without being explicit eg simply assert that the splay of OK and hope they do not require proof. 

 

In a situation I had, the key aspect was that creating an established use which had not been enforced against over a short period of time, which meant there was no expectation that that would happen later. That made it insurable (I understand).

 

Obviously, if you go and find the company who will enforce against you before you get that in place, the event is no longer uncertain, so you have shot your own fox wrt an indemnity policy.

 

The situation I was mitigating against was where the seller (of a renovated house) to me had not got exact planning permission for what they had done and there was also a civil issue, and imo there was a residual risk that a neighbour could theoretically inhibit a parking space, which would have an impact on the value of a property and reduce the value. 

 

A solicitor was able to obtain an indemnity policy on the value loss at a good price once the space had been in use. It would in effect make the property mortgageable for a future buyer at full (not slightly reduced) value.

 

I could not comment on whether you could insure against being buggered by the planners on a particular aspect. You need a strategy that will make both the planning and future value risks acceptable to you. Devil is in the detail, and do not saw off your branches before you realise you need them to sit on. What you do not tell planners and people will be as important as what you do.

 

I think I would start with the road - if it is a serious road that the planners will not skim over or miss, then you will have to tackle it head on, and hope the access restriction by next door does not happen. If it is a minor road, or a place where you can create an entrance as of right, there is more room to JFDI.

 

Ferdinand

 

Edited September 22, 2019 by Ferdinand

[Temp]

If its a minor/unclassified road (not an A or B road) you may not need planning permission for a new access. For example if the use of the site is covered by permitted development. In such a case you could form the access first, use it for awhile, then apply for planning to develop the site using the existing access. The planners can still object if the new use would involve more traffic using the access making it more dangerous.

[Ferdinand]

Once you have your facts, sequence and t8ming are key.

 

May be worth a little Planning Consultant advice.

[MikeSharp01]

38 minutes ago, Sensus said:

Actually, they do

How does that work then? You would need planning permission to undo a planning permission. 

[Ferdinand]

1 hour ago, Sensus said:

 

Actually, they do.

 

The obvious question for the OP is what stage are you at with the Planning?

 

 

Would you concur that whilst a PC has a lifetime, it can become unenforceable.. which could be argued as ‘expiring’?

 

eg I have a neighbouring landing window overlooking a drive, and I think it is conditioned to be obscured. They have left it unobscured and is have not bothered .. as a non habitable room it does not bother me so I have left it. This was 2005 so I believe unenforceable.

 

F

[MikeSharp01]

1 hour ago, Sensus said:

 

There is a specific application process to vary or remove a Planning Condition, known as a 'Section 73A'.

I wonder how many of them get issued a year? Bet most people don't even realise there are conditions on their home especially if they are a few owners down the line from the planning permission. 

[edsr]

Wow, thanks all - this gathered pace!

 

Thanks to the advice from earlier posts I spent much of the weekend searching local records and have established that the council owns the land. It had always been a possibility so could have been quicker to just call them, but much less interesting as I’ve learned a lot about the local history as a result. 

 

There is no planning in place. Pre app says ‘potential’. We can use another access but there is potential future benefit to being able to subdivide the area adjacent to the unregistered land as a separate plot with its own access. 

 

Next question: are there any tips for engaging with the council to buy the land? Presumably better to get a price before purchasing the adjacent land and putting in for planning? 

[Ferdinand]

Yes -  talk to the Council. They will probably give you a quote a reason why they will not. A small number of thousands would - I guess be a target price - and if it goes well into 5 figures without a good reason they are probably trying too hard. 

 

But probably talk about Amenity Land rather than Planning Permission, and check out a few auctions to see what the prices are for random bits of council land. May be worth a check on value with a local pro.

 

If it gets sticky, remember that they have a duty to help self-builders under the most recent NPPF, with which you can prod helpfully.

 

You will want to talk to the Legal Team or Estates rather than Planners. There is a ditty that I just doggerelled:

 

"The Self-Builder's coming, Oho, Oho !"

"The Self-Builder's coming, Oho, Oho !"

"The Self-Builder's coming to help out our budget!"

"The Self-Builder's coming, Oho, Oho !"

Ferdinand

 

[Temp]

On 22/09/2019 at 18:29, Sensus said:

Yes, usually the 4 year rule will apply (ie. if you can prove that there has been a continuous 4 year breach of the condition, then enforcement action against it is not possible).

 

... But even then the Condition itself does not drop dead. As I'm sure you're aware, the 4/10 year rule relies upon continuity of the breach.

 

Think they have 10 years to enforce a breach of a planning condition.

[ProDave]

If it's council land, why do you need to buy it?

 

You just want an undertaking that it won't get blocked.  Perhaps you could just ask their permission to maintain the land at no cost to them, i.e you cut the grass and prevent it turning to scrub?

[Ferdinand]

2 hours ago, Ferdinand said:

Yes -  talk to the Council. They will probably give you a quote a reason why they will not.

 Mangled this by mistake. 

 

Should say:

 

"Yes -  talk to the Council. They will probably give you a quote OR a reason why they will not sell".

 

Thanks for the reply @Sensus.

 

F