Does a right of way expire?

[peekay]

I live in an end of terrace house with an alleyway running alongside the house. My house and the house on the other side both had gates into the alleyway. The reason for its existence was an extra exit to a joinery works behind the properties. 30 years ago the Joinery was redeveloped for housing and the bottom end sealed off, leaving a dead end. My former neighbour was a council tenant and he decided to remove his fence and but a locked gate across the top end of the alley for security reasons but also claiming the alley into his garden. This was done without council consent but they never would have noticed anyway. Our previous owner did not object as she could still enter "his garden" to go through the new gate. Fast forward to now and the council have now got a new tenant after 40 years and have no longer allowed our gate into the now gone alley and deny us access through gate. Their deeds clearly state that it is a right of way and so I don't know if they can do this. They say that because the fence was removed circa 25 years ago the alleyway has become his garden but sure if the right of way still exists? I'm hoping so. It has been continuously used for the last 50+ years by ourselves and the previous owner so that's not a problem. To add insult to injury the council has now re-let the house (having been vacant for a year) and listed it as having off street parking although a) there is no dropped kerb and they have to drive across a manhole cover but b) half the car sits upon the right of way further blocking access.

Council Title Register
(29.09.1978) The land hatched blue on the filed plan is subject to right of way and rights of drainage through a six inch drain connection with the sewer in L*** Road.


(sorry not allowed to add attachments)


The council have said of the right of way "Those rights I suppose still technically exist but of course the reality is that in a practical sense they have ceased following the mews development to the rear." What does that mean? We have a right of way or not? Obviously they were added because of the no longer existing Joinery but the deeds make no mention of this and therefore are not reliant on it still being there?

If anyone can offer any advice on whether to contest this then it would be appreciated, as I've been quoted £500 just for someone to give their opinion on it!

[des8]

Once it has been created, it is very difficult for a private right of way to be lost.

There are basically three ways in which it can be extinguished:
1. Express agreement to extinguish the right by a formal deed of release
2. The beneficiary demonstrate by their actions that they intend to abandon it.
3.By estoppel i.e. the owner of the burden land has relied on the conduct of the dominant owner, which indicates an intent to give up the right

The courts have held repeatedly that a mere failure to exercise a right of way is not by itself enough for it to be lost.

So tell the Council that if they don't restore the access you will look to the courts to enforce your right and seek an adverse costs order

[peekay]

Thanks, I'll go back to them and see what they say about that!