Advice sought on permission to build.

[matstand]

Hello.

 

We have a property in central  sevenoaks, with a large garden. We should get planning to build a 3/4 bed detached house on the garden, with a view to selling on to self builder.

 

However. Our property is on hill with a train tunnel running (100m) below our garden. This should not prevent building, as other properties have been recently  built over the tunnel. The issue is, our deeds. The include a 160 year old clause that appears to give a rail company (which is now network rail). The right to veto any building works  in the garden. 

 

I know I should probably approach the assett protection department of network rail, but I am loath to do this. If I ask their permission, it feels like  I am acknowledging their right to veto. My solicitors were pretty useless and couldn't really advise me. I was wondering what else I could do, if their is a type of consultant who specialises in this kind of issue?

Or should I just seek planning and then try and sell it that way.

 

Any thoughts welcome.

 

Thanks

 

 

 

 

 

 

 

[Moonshine]

20 minutes ago, matstand said:

I know I should probably approach the asset protection department of network rail,

 

Don't do this. Apply for planning permission and get that ball rolling.

 

look to get insurance against a situation that they claim, give these guys (there are others) a call to see if they can help you

 

https://www.lawsureinsurance.co.uk/our-products/title-protection/

[ToughButterCup]

While I respect and value many of  @Moonshine's posts, I disagree with the one above. 

 

If this statement is correct , 

43 minutes ago, matstand said:

...

This should not prevent building, as other properties have been recently  built over the tunnel.

...

 

then there should be no real problem.

It might be an idea , @matstand to talk to others who have done what you propose, or something close to what you propose,  and guage their experience of talking to Network Rail. Who knows, you might even find that you don't need a solicitor.

 

I know the NWR can be a really serious nightmare: friends of ours have had endless trouble. But to risk a diligent solicitor in years to come finding that no agreement between you and NWR ..... (sucks teeth) 

Edited October 26, 2021 by ToughButterCup

[Ferdinand]

IS it a covenant that restricts you?

 

If so, if others have breached the  same covenant then it is likely to be unenforcible.

 

So I would download the deeds of the houses where these other places were built in the gardens, and see if any have that same covenant.

 

Then you have evidence of unenforcibility.

 

Perhaps once you have that, check with a local long-established legal firm, or Town Planner (MRTPI), who may with luck have dealt with the question before. 

 

For your PP I would go for Outline, not detailed, with most matters reserved. Others may differ on that.

 

F

 

[Temp]

Check the terms of any insurance very carefully. Sometimes they exclude claims where the covenant favours someone that can easily be identified. Other times they exclude claims when you have made efforts to contact them.

 

5 hours ago, matstand said:

The include a 160 year old clause that appears to give a rail company (which is now network rail). The right to veto any building works  in the garden. 

 

I would get a specialist to tell you if the covenant/clause is still enforceable.  These days most have to be written in favour of another piece of land rather than a person or company.

 

5 hours ago, matstand said:

other properties have been recently  built over the tunnel

 

What did they do? Try contacting the owner/builder of those houses?

 

[matstand]

Hello. Thank you all for advice so far.

 

I haven't spoken to the people who have built over the tunnel, and can't be certain that their deeds contain the same covenant, but I will find out.

 

Does any one know what sort of specialist could help me to understand the issue in detail?

[Ferdinand]

On 26/10/2021 at 17:55, matstand said:

Hello. Thank you all for advice so far.

 

I haven't spoken to the people who have built over the tunnel, and can't be certain that their deeds contain the same covenant, but I will find out.

 

Does any one know what sort of specialist could help me to understand the issue in detail?

 

 

Perhaps once you have that, check with a local long-established legal firm, or Town Planner (MRTPI), who may with luck have dealt with the question before. 

 

You need someone with some specialist legal expertise, and some significant local experience.

 

For me that is either a local solicitor firm large enough to have a property department - perhaps one with 2 or 3 branches, or an experienced (10-20 years+ locally) MRICS (Chartered Surveyor) or MRTPI (Town Planner). The "Local" means there is a non-trivial chance that they may have dealt with the same question before on another of the properties.

 

I would probably suggest a short convo with an MRICS or MRTPI first as you may get an answer casually in 15 minutes.

 

One place to find an MRICS is at a well-established local Estate Agent. You want the chunky middleaged one with the greying stubble and the 3 unwashed cups of coffee dregs.

 

[saveasteading]

I think you really must speak to the neighbours. Either they have been through this and can tell you what was involved, or they have ignored it, and it will be short discussion.

 

Also with more research you may find that they are not exactly over.it.

 

Then get advice.

 

I imagine that network rail will allow the construction, but you will have to agree that they are not responsible for any problems that might be due to the tunnel in the future.

They will also want to know that you are not piling, or drilling a borehole or such, over or into their tunnel.

This would be fair and it is reasonable that they get to consider the effects of any proposal, after all the tunnel was there first.

 

Guessing, but I think they will want to see designs rather than agreement in principle.

 

The agreement will also be part of any mortgage or sale process in the future. 

Some insurers might not like it, but there is usually one who will....again the neighbours have been there before you.

[matstand]

thanks everyone good advice.