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Restrictive Covenant

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  • Restrictive Covenant

    Hi, I wonder if anyone can offer advice.
    We are a group of residents living in mid 1930's properties with private service roads/ alleys which are mainly used for vehicle access to garages at the rear of our properties. The alley sections are unregistered but all residents have right of way over each section. The original builders included a covenant that no part of these alleys should become a road or way.
    I the late 1950's the local authority purchased land to the rear of these alleys and built local authority housing, unfortunately they left a gap between two of the new properties which provided access to the private alleys. For many years this short section linking to the private sections was a dirt track but was later paved by the local authority. Fast forward to 2001 and local residents were becoming increasingly concerned with crime and antisocial behaviour in the alleys and contacted the local authority for advice. They persuaded residents to apply for alley gates. All the legal searches were carried out and it was confirmed (in writing) that all sections were private and could be legally gated. It was agreed that the best place to place the gates would be on the section between the two local authority houses, unfortunately while the erection of the gates was in progress( by the council's approved contractor) someone stopped the work (apparently due to objections from a local councillor). The upshot was that the local authority subsequently claimed a mistake had been made , they were now saying that the short section between the two houses was a public highway (and had been since the construction of the local authority housing in the late 1950's. There was no dispute over the legal status of the private sections but residents were threatened with an injunction if we gated them (the local authorities said this action would inevitably lead to a claim for public right of way). In 2006 residents attempted to reach a compromise by requesting a night time gating order as this would have enabled daytime use for the public but would have gone some way to deal with the increasing number of garage burglaries at night. We even took part in a crime profile which established that there was sufficient crime to support a gating order. Unfortunately the local councillor objected to this compromise ( we don't know why) and the council obliged by discarding the crime profile and carrying out another one without our knowledge ( apparently they carried out quite a few until they obtained a profile that did not support a gating order).
    Recently residents were issued with a definitive Map Modification Order over the private sections. The claim for public right of way is made under the Wildlife & Countryside Act but has not been claimed by a member of the public. the council have issued it on their own behalf as part of the remapping of a previously excluded area.
    They are refusing to address the issue of crime and antisocial behaviour but the creation of a public right of way will only exacerbate the problems for residents. We feel we have done everything possible to reach a compromise but this has not achieved a solution.
    Given that the local authority have effectively created a way over the private sections in contravention of the covenant do we have any options open to us regarding breach of covenant? There is no evidence of any agreement with former residents to remove the covenant in the 1950's.

  • #2
    I cannot help much with this, except to suggest that it is not the restrictive covenant aspect that is particularly relevant but -
    (a) the public rights of way aspects and
    (b) the local politics that seem to be involved

    I would have thought that the first step should be to speak to the local councillor to find out why s/he is causing this problem and to put your point of view.

    Subject to this, I would seek legal advice on the rights of way aspects and whether/how you can block it
    This is based on my experience as a conveyancing solicitor in England, but I do not accept liability for information I give in this forum


    • #3
      Hi JustinN,
      Thanks for the reply, unfortunately our councillors refused to enter into any further discussion on this matter a long time ago. I have discovered from a F.O.I request that the council dropped the gating order proposal because if they proceeded it would be seen as a 'kick in the teeth' to those that had campaigned( and one councillor in particular) for a public right of way.
      The previous highways manager had already told us that the decision not to gate 'was a political decision (in all senses of the word)'.
      Strangely the councillors are very selective in their opposition to gating because they paid for gates (out of their ward funds) to gate sections of the same alleys because of complaints about antisocial behaviour. The difference was that this was done in response to complaints from council tenants, they obviously don't believe gating other sections of the alleys will produce many votes from private residents.
      However some years ago a councillor (now deceased) did live in a private house next to one of the troublesome alleys, that alley no longer exists because that was closed and incorporated into his garden without any fuss or interference from the council.
      As far as I know the only way to prevent a public right of way coming about is to prove there was no intention to dedicate. I understand that a restrictive covenant can no longer be used to prove lack of intention to dedicate (Godmanchester ruling) so I don't think we have any other legal options regarding the right of way.
      Regarding the construction of a public highway onto private land in the late 1950'sI have done some research and according to the Land and Property Act 1925 the council should have either entered into an agreement with residents to remove the restrictive covenant or should have made a S84 application. This did not happen and the result was that they constructed a public highway which has created a way over the private sections thus breaching the restrictive covenant. Our view is that all the problems we are now suffering from is directly attributable to the actions of the council.


      • #4
        Yes, you do seem to have a council that is over-political

        I'm afraid that I cannot offer any more constructive suggestions, and I suspect this forum is not the best place to seek advice. There may be other forums, less focused on conveyancing and more focused on the sort of battle you are involved in, but I'm afraid I don't know them

        Sorry I cannot be of help, but good luck anyway
        This is based on my experience as a conveyancing solicitor in England, but I do not accept liability for information I give in this forum