Q&A Can developer and council ignore or remove an old covenant?

Q:      Land behind my house which was owned by an old man was bought four years ago by a developer who subsequently got planning permission to build 27 houses. We, the homeowners whose properties back on to the development site, were given rights of access to what has been a play area for many, many years.

On hearing about the planning application, we jointly informed local planners and council members of our right as the development plans had clearly not taken this into account and to uphold our right would potentially reduce the number of properties that could be built. We were however ignored, and the planning permission was granted. Is there anything that we residents, as a collective, can do?

 A:       The access to the play area may be a legally enforceable right called an easement. Although the Local Authority do not need to consider this when granting planning permission, the Developer still needs to consider the right of way as the easement may remain effective and enforceable against the Developer and could potentially impact on the layout of the development.

Usually, easements are granted by way of Deed and there should be evidence of the right of way. However, easements can sometimes be acquired by ‘prescription’, i.e. acquired by long usage. It would first be necessary to see whether the easement is granted by a Deed (and possibly registered at the Land Registry), or whether the right has been acquired by prescription, in which case more information would be required.

This is a complex area of law, and it would be advisable for you and your neighbours to collectively seek legal advice immediately, before any construction work commences, to consider the enforceability of your rights. It may be that early discussions could reach a solution, or if not, an injunction may be required, which is costly.

This question has been answered by Patricia Hughes, a Solicitor with GHP Legal.  If you would like to speak to someone about this or any other legal matter it is still possible, and we are doing everything we can to ensure that we continue to offer our high levels of service to our clients.  Where possible, we ask that you communicate with us by phone or email. If you have a new enquiry or for an appointment visit www.ghplegal.com or contact one of our offices: Wrexham 01978 291456, Llangollen 01978 860313, Oswestry 01691 659194 

Patricia Hughes

Patricia Hughes

Senior Solicitor

Part of our Conveyancing team in Wrexham