Stopping up order

[ianb1960]

We are aware that an application is imminent to stop up a section of unadopted highway adjacent to our property. We have previously (in February 2000) successfully claimed a prescriptive easement over this land, as it is the only means of accessing our property by vehicle, and we have the "Notice entered in pursuance of rule 254 of the Land Registration Rules 1925..." clause shown on our Land Registry title documents. Is this in itself sufficient to prevent a Stopping up order being granted, or do we need to take additional measures to protect our access?

The background to the situation is as follows:
our property is essentially 'landlocked', being bordered to the north by a privately owned property, & on the other 3 sides by land which is currently owned by the local provider of social housing (since October 2006 - prior to that it was owned by the local council). The unadopted highway in question is part of the land owned by the provider of social housing. There is also a pedestrian pathway which runs from the unadopted highway along the eastern boundary of our property. This pathway is also included in our easement.
Towards the end of 1999 we were advised that the council intended to block access to this piece of highway & consulted a solicitor, as we believed we had established our right-of-way, having used the land for access for more than 30 years (in 1999, it's over 40 years in total now). The result was the clause I mentioned above.
The social housing provider has now applied for planning permission to build 2 pairs of semi-detached houses, partially on the unadopted highway & partially on the garden of the house on the other side of the pathway to the east of our property. That house & garden are owned by the housing provider. The planning application has been approved, and in its current form will completely block access across the unadopted highway, which is why the housing provider intends to apply for a stopping up order.

Is there anything else we can do to protect our access?
Losing it would be extremely inconvenient, & I suspect it would considerably reduce the value of our property.

Thanks in advance for any replies.

[buildersmate]

I don't believe that there is anything else you can do to strngthen your legal position (which was your question). You should point out to the owner of the land (the social housing provider) that you have claimed a prescriptive easement - is it aware of this?

I need more time to research this for. The terminology of your entry on the land title is that which was used prior to the change in the Land Registration Act 2002 - which makes sense as you say you obtain the easement back in 2000.

Bear in mind that planning consent is completely unlinked to the land registry - it is perfectly possible that land owner seeks and obtains planning consent that does not fit against your legal entitlements - that is why I am asking whether they know.

I believe (and this is the area that I want to research) that if the land was registered, the LR would have approached the social housing land owner back in 2000 when you made your application. Which leads me to suspect that the unadopted highway you mention is not actually owned by the SH provider. How do you know it is ownede by them - have you seen a title plan for it?

[ianb1960]

@ buildersmate
Thank you for your response, which coincides with my own thinking from the research I have done so far.
The land owners are aware that we have claimed right-of-way over this piece of land as we have told them about it at a meeting which was held 3 weeks ago. We have not given them full details or produced any paperwork as yet because we have been playing 'catch-up' regarding the planning application, due to the fact that the housing providers failed to contact us in any way about the situation. Although the planning application was submitted on 15 December 2011, the first official communication we received was a letter from the planning authority which arrived on 10 January 2012. We objected to the application on the grounds that they would not be able to build on/block our easement, thus rendering the application pointless. Despite this, the application was approved by the Planning Committee on 8 February 2012.
I understand that, legally speaking, the planning application & the easement are two entirely separate issues and they will, therefore, be dealt with on their individual merits but in practical terms they are interdependent.

As regards the ownership of the land in question, the whole of the housing estate was originally owned by our Town Council when the houses were built in the late 1960's. At that time none of the properties were privately owned, they were all rented from the council. Since that time, some of the properties (including ours) have passed into private ownership.
In 1974 the original Town Council became absorbed into a much larger Metropolitan Council as part of the Local Authority re-organisation that took place & ownership of the land passed to the Metropolitan Council.
In October 2006 the housing provider took over the housing stock (& associated land) from the Metropolitan Council. The unadopted highway in question provides access to a small number of lock-up garages which are owned & rented out by the housing provider and I have been told by a neighbour that an employee of the housing provider has said 'It's our land & we'll do what we like with it' during a conversation about the planning application - this is pure hearsay but it does indicate that all parties believe that ownership of the land is the housing provider's.
The upshot of this is that the LR would have contacted the Metropolitan Council in 2000 as they were the owners at the time - I dare say that any paperwork from that time had disappeared into the council archives before the SH provider took over the housing stock etc in Oct 2006 and therefore the SH provider was not aware of our easement when they drew up their plans in 2011.
I have seen a copy of the report that the council's Planning Department submitted to the Planning Committee and the requirement for a Stopping Up Order is mentioned in that report.

Thanks again for taking the time & trouble to answer my question.
Any further thoughts/information would be very welcome and much appreciated.

[buildersmate]

Have you established that the land comprising that over which you have obtained a prescriptive easement is registered to anyone - by asking the LR.
You can do this for a small charge using Form SIM - the procedure is explained in Practice Guide 10 here - http://www1.landregis...d/documents/pg10.html
You won't be able to use the portal 'Who owns a Property' service as there isn't a postal address for a parcel of land - you will have to describe it in relation to something the LR can relate to - 'land to the east of XYZ etc' and make the application by post.

I suspect that your situation is very common where estates developed as council housing has subsequently been transferred to a social housing provider. The main estates roads are adopted as part of the public highway but the little lanes or alleys that run between people's houses are not necessarily.

When you successfully made the application for an easement, did you provide the LR with a plan showing the area of land over which you were claiming a right to pass/repass? - if so you can use that to describe to the LR what you are now asking whether they have an owner registered.

[bushbaby_de]

Just to confirm what others have said, the grant of planning permission is absolutely unconnected to any other legal rights that may exist over the land. That said, you may need to take civil action to protect your rights if the landowner decides to plough on regardless.