If you are planning on creating a new vehicular access point into agricultural land from a public highway then beware, a recent case has shed light on the issues surrounding the creation of a new access point over the grass verge and into agricultural land.
The creation of a new vehicular access onto a public highway is usually development that requires planning permission.
In the recent case of Jones and another v Secretary of State for Housing Communities and Local Government and another two landowners, the landowners owned a field that ran adjacent to a road and was bordered by a hedge and grass verge. The landowner removed part of the hedge and installed a gate for access into the field without first obtaining planning permission. The landowner then laid concrete from the edge of the road up to the gate.
An enforcement notice was issued which alleged that the works breached planning control. The notice required the removal of the access, gate and the concrete . It also required the landowner to replant the hedge and sow new grass. The landowners argued that the access was permitted development and so did not require planning permission.
Permitted development allows certain building works and changes of use to be carried out without the need for a full planning application. . this may allow field entrances onto unclassified roads to proceed without planning permission in select circumstances. But, in this case, the road concerned was an unnumbered C-classified road, and because of this, the landowners could not rely on the permitted development rights.
It was found that the construction of the gate together with the driveway constituted development that required permission. The landowners appealed however the appeal was dismissed.
Creating a new access point is not the only issue landowners can face when it comes to creating a new access. In most cases, the land on either side of the road (the grass verge) forms part of the highway and so can be owned by an individual however maintainable at public expense. This does not however, mean that the individual can alter the grass verge as this is deemed to form part of the highway and the highway must not be obstructed. It is no defence that the obstruction is made on a part of the highway which is not ordinarily used for passage. Nor is it a defence that the obstruction is a public benefit, or that it is reasonable use by an owner of adjoining premises.
This is not just an issue on public roads, where land is interrupted by a private right of way, issues can arise in relation to maintenance or access. There is a presumption that when a landowner owns land on either side of the right of way, then that landowner will own the right of way to the mid-point on either side. However, this assumption is rebuttable by wording within the property deeds.
Where the assumption is rebutted, it is still possible for landowners to gain rights over the private road although these are generally by agreement or through long use.