BOUNDARY RIGHT OF WAY DISPUTES NOTTINGHAM LOGO

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NOTTINGHAM DERBY RICS SURVEYORS INDEPENDENT EXPERT REPORT FOR A RIGHTS OF WAY BOUNDARY DISPUTE

This concerned a row of three Victorian terraces houses. A driveway had been constructed across the rear gardens to provide access in the 1950's. An owner of a house set perpendicular to the terrace; the side of whose house abutted the drive created a gateway to the driveway from his own property. However, it was possible to show from an old conveyance document that the right of way had never served that property. Furthermore, the land registry title plan showed that house at the side of the driveway had a pedestrian right of way across the rear of other properties in that road as was customary in Victorian times.

If owner of the house trying to claim the right of way was able to use the drive for twenty years without consent they might be able to claim a right of way by prescription.

 

 

One of the subject properties with the right of way at the back.

 

 

One of the subject proeerties in blue. The perpendicular property at the side of the right of way in red. on a Title Plan. The Title Plan shows its own pedestrian access across the rear of the other properties in the same terrace.

The driveway.

 

The new gate in the white wall of the property at the side of the right of way constructed to try and obtain a right of way over the driveway.

 

 

 

14th August 2021

 

Ms

72 N

Nottingham

Dear Madam

72 N and 2 O R S

 

  1. Instruction

 

  1. To prepare a Part 35 CPR report in respect of the boundary between 72 N and 2 O R S

 

  1. I have not acted for either party before.

 

  1. Qualifications

 

  1. I am Steven John Macgregor Butler, a Member of the Royal Institution of Chartered Surveyor trading as a sole practitioner. I qualified in 1992 and have in excess of ten years’ experience of preparing reports on boundaries and rights of way. CV attached.

 

  1. Documents

 

Conveyance of 72 N dated 2nd October 1969

Title register of 72 N

Title register and plan for 2 O R S

 

  1. Inspection

 

  1. 72 N is a terrace house on the south side of New Street. It is the third house to the west of the junction with O R S.

 

  1. 2 O is an end terrace house that sits at the end of the gardens of 68 to 76 N

 

  1. The end of the gardens at 68 to 72 N have been converted to an approximately twelve foot wide right of way that provides access to those properties and a garage at 74 N

 

  1. There is a pedestrian gate at the side of the rear yard at 2 O R fronting the rights of way at the rear of 72 N that was apparently constructed in recent months.

 

  1. The layout of the properties in relation to each other is shown on the Conveyance Plan and Land Registry Plans.

 

  1. The Dispute

 

  1. The dispute concerns whether the property at O Road S has a right of access over the right of way at the rear of 68 of 72 N.

 

  1. Analysis

 

  1. Intrinsic Evidence

 

  1. The 1969 conveyance of 72 N suggests that the section of driveway passing over the end of the property belongs to the property and that there is a right of way in favour of 74 described as being reserved for the vendor Mr Ilse and successors in title.

 

  1. A 1938 conveyance of 2 O is not available but the register refers to Metcalfe Peutherer selling the property to E Estates in 1938 together with existing rights. There are no other references to rights of way in the register.

 

  1. Extrinsic Evidence.

 

  1. OS sheets of the area prior to 1965 suggest that 2 O G had a right of access to the rear garden via 4 O G and that the right of way across 68, 70 and 72 N to 74 N did not exist at all.

 

  1. Although a matter for evidence Miss C tells me that the gate and opening from 2 O R S on to her property have been recently constructed.

 

 

  1. Conclusion

 

  1. There is no documentary evidence of a legal grant of a right of way over 72 N in favour of 2 O R S

 

  1. Although a matter of evidence the gate at the side of 2 O R S is understood not been in-situ long enough to have acquired a right by prescription.

 

  1. The access to the rear garden of Number 2 O RS via Number 4 O R S and lack of any evidence of a right of way at the rear of 72 N before 1965 is not consistent with a right of way in favour of 2 O South.

 

Statement of Truth

 

This report is prepared in accordance with the Royal Institution of Chartered Surveyors Expert Witness Practice Statement.

 

I Steven JM Butler DECLARE THAT:

 

1. I understand that my duty in providing written reports and giving evidence is to help the Court, and that this duty overrides any obligation to the party by whom I am engaged or the person who has paid or is liable to pay me. I confirm that I have complied and will continue to comply with my duty.

 

2. I confirm that I have not entered into any arrangement where the amount or payment of my fees is in any way dependent on the outcome of the case.

 

3. I know of no conflict of interest of any kind, other than any which I have disclosed in my report.

4. I do not consider that any interest which I have disclosed affects my suitability as an expert witness on any issues on which I have given evidence.

 

5. I will advise the party by whom I am instructed if, between the date of my report and the trial, there is any change in circumstances which affects my answers to points 3 and 4 above.

 

6. I have shown the sources of all information I have used.

 

7. I have exercised reasonable care and skill in order to be accurate and complete in preparing this report.

 

8. I have endeavoured to include in my report those matters, of which I have knowledge or of which I have been made aware, that might adversely affect the validity of my opinion. I have clearly stated any qualifications to my opinion.

 

9. I have not, without forming an independent view, included or excluded anything which has been suggested to me by others, including my instructing lawyers.

 

10. I will notify those instructing me immediately and confirm in writing if, for any reason, my existing report requires any correction or qualification.

 

11. I understand that –

 

a. my report will form the evidence to be given under oath or affirmation;

 

b. questions may be put to me in writing for the purposes of clarifying my report and that my answers shall be treated as part of my report and covered by my statement of truth;

 

c. the Court may at any stage direct a discussion to take place between experts for the purpose of identifying and discussing the expert issues in the proceedings, where possible reaching an agreed opinion on those issues and identifying what action, if any, may be taken to resolve any of the outstanding issues between the parties;

 

d. the Court may direct that following a discussion between the experts that a statement should be prepared showing those issues which are agreed, and those issues which are not agreed, together with a summary of the reasons for disagreeing;

 

e. I may be required to attend Court to be cross-examined on my report; and

 

f. I am likely to be the subject of public adverse criticism by the judge if the Court concludes that I have not taken reasonable care in trying to meet the standards set out above.

 

STATEMENT OF TRUTH I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

 

Signature                                                                               Date

SJM Butler                                                           14/08/2021

14th March 2022

RIGHT OF WAY DISPUTE NOTTINGHAM