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Rights of way access to developments.5th March 2019 Commercial
A recent Court of Appeal decision has highlighted the need for anyone wishing to develop their land to ensure that they have all necessary rights of access to the land they wish to develop before they embark on a development.
In February 2019, in the case of Parker v Roberts  EWCA Civ 121, the Court of Appeal considered, and dismissed, various arguments made by the Respondent (Mr Roberts) for an implied right of access to the land he wanted to develop at the rear of his property.
Mr Roberts owned a large property in Cobham, Surrey, and had obtained planning permission to erect a 5,000 sq. ft. house on a building plot in the rear part of the garden to his house. Mr Roberts accessed his house using a private road which was owned by his neighbours, Mr & Mrs Parker (the Appellants).
Mr Roberts was permitted to use the Parker’s private road as part of his property (his house and the part of his garden closest to his house) benefitted from a right of way over the Parker’s private road. Crucially however the plot which Mr Roberts wanted to develop wasn’t expressly mentioned in the right of way over the Parker’s private road as, historically, this land had been in a separate title to the other part of Mr Robert’s property.
The right of way to the development plot was crucial for Mr Roberts and so his legal team sought to argue that he had an implied right of way based on (1) the interpretation of the 1968 right of way which benefitted the front part of his property, (2) via the ‘benefit and burden’ principle and (3) by necessity.
The Court of Appeal rejected each argument made by Mr Roberts that the required right of way should be implied and so this case acts as an important reminder that anyone wishing to develop land should ensure that the proposed development enjoys all necessary rights of access prior to incurring any expenditure on acquiring land or obtaining planning permission.
JMW Solicitors can provide expert advice in respect of the express rights of way land may or may not benefit from and also the prospects of the land acquiring an implied right of way.
For more information contact Richard Glover on 0161 828 1851 or Richard.firstname.lastname@example.org.
Richard Glover is a Senior Associate in the Real Estate Litigation Team