Right of Access burden & Change of Use

[pmappy]

Hi all,
We have an issue looming, that is starting to really worry me. We have a burden on our property deeds from the 1950s, that has never caused any problems in the past. Our neighbour has a right of access to their garden from our garden. Originally this was only ever used once in a blue moon as our neighbour has their own access to their garden these days. During the pandemic years, our neighbour became quite unsteady on her feet, and we started allowing her bins to come through our garden, as it was a shorter walk for her, and we could help. Even then, it was used just once a week, and in a predicted pattern.
Unfortunately our neighbour died, and the cottage has been sold. I met a man in our garden a few weeks ago, who told me that the new owners had told him to use our gate and garden as access for their property when they aren't in. Meeting strangers in the garden gave me a bit of a surprise, and has made me worry a little about the children and our pets.
On top of that we've just discovered that planning permission has been submitted for a change of use of our neighbours cottage to offices and workshops, with a large extension being built at the back. We have also heard that they are planning a cafe section too, although I can't see that on the current plans. We haven't seen or spoken to the new owners yet as they don't live locally, and we have received no neighbour notification about the panning permission application.
So, a couple of questions...
Does a right of access still exist if it is no longer needed (because they do have their own access gate)?
Can they tell anyone they want (employees, clients, customers etc) to come and go through our garden freely?
Do they have a right to tell builders etc who will be doing the work that they can bring all their equipment and materials in via our garden?
Is there anything that we can do to protect our children and privacy? This path is coming past the front of our house and leaves us no privacy in the garden (we don't have a back garden to hide away in!).
Just to add, the burden on the deeds only seems to mention a restriction of 2 feet 6 inches for the width of the path they can use. The rest of it is written in a way that I can't translate it!
Thanks

[atticus]

Can you please quote the exact wording of the right of way as shown on the deeds.

[pmappy]

I'll try. There's a disturbing lack of punctuation in it, and I think most of it is an easement for us. It's under the Burdens section of our deeds.

Disposition by XXXX(name of owner of our property) to XXXX(name of owner of neighbouring property), recorded GRS 24 Oct. 1956, of subjects abutting the subjects in this Title to the south, contains the following rights and burdens which affect the subjects in this Title:
Together with a right of access to and egress from the rear of the subjects hereby disponed over and across a strip of ground 2 feet 6 inches in width tinted blue on the Title Plan; Reserving always to me and my successors as proprietors of the subjects in this Title (1) right to use said strip of ground tinted blue in any way so long as not interfering with the access of my disponee; (2) right of access to the subjects herby disponed for the purpose of maintaining repairing and when necessary renewing the roofs gables and others of sheds and buildings belonging to me and adjoining the subjects hereby disponed and (3) the existing water and drainage rights of the remainder of the property known as XXXX(the name of our house) with wayleaves for the existing pipes and sewers and drains and right of access thereto when necessary for maintaining, repairing and renewing the same and right to water from the water tap; Declaring that my diponee and his foresaids shall be under burden of erecting within one year of 341 Aug. 1956 a suitable stob and wire fence along the boundary between the subjects hereby disponed and the adjoining property belonging to me and thereafter of maintaining such a fence in good repair in all time coming.

[dslippy]

Does a right of access still exist if it is no longer needed (because they do have their own access gate)? - Yes
Can they tell anyone they want (employees, clients, customers etc) to come and go through our garden freely? - It looks like it. The right is attached to the house and will include visitors and licencees.
Is there anything that we can do to protect our children and privacy? This path is coming past the front of our house and leaves us no privacy in the garden (we don't have a back garden to hide away in!). - Sorry but you never had a right of privacy - you boiught a house wit a right of way for your neighbour through the back garden

Note - disponee sounds Scottish - if so these answers might be incorrect. Scots law differs unpredictably from E&W
Best is not to expect the worst. Things may not turn out anywhere near as bad as you now think they might. Before anything untoward is said be sure to try to keep this friendly. I cannot emphasise that what is now an annoyance can turn into something very much worse if you are not careful. Keep it friendly.

[pmappy]

Thanks. It is, indeed, in a Scottish village. I suppose we'd always imagined it as just access for our neighbour if they needed it, and it's always been a friendly arrangement for the 20 years we've been here. I have no problem with the oil lorry bringing it's pipe through our garden to fill their oil tank, or the bins coming through when our neighbour could no longer cope with using them at the top of her garden. It never occurred to us that a business would move into a domestic property, and run workshops for the general public from it. How do we even know that the strangers in the garden are actually anything to do with the property next door? From my point of view it's changing from a right of access to a right of way.
It's hard not to worry, due to the lack of contact from them, It's a shame, because the plans do look lovely, and it will bring jobs. I have no way of broaching the subject with the owners, as we have no idea who they are.
I guess we'll just have to wait and see. At least it's only 2 feet 6 inches they have, and now I've looked at the plans, I can see that that blue area is right against their house, rather than the path they currently use, which makes it a little less convenient for them. This area is cobbled, and includes a tap and drain (which is marked on the plans on the deeds, so we shouldn't be asked to move it). The burden was originally put in place by the couple we bought our house from and our late neighbours husband, so it was always just intended for just occasional use.
Which brings me to another question:
The burden states that we can do what we want with the access strip, just as long as we don't interfere with the access. Does this mean I can put plant pots on this strip, just as long as they can be walked around? I'd never considered this before. I'm wondering if they are going to ask us to move everything from this area, so that they can wheel things in. God, I wish they would just speak to us! I'm imagining all sorts of things. I need to learn to live in the present, rather than worry about the future!

[des8]

Have you considered commenting on the planning application? https://www.scotborders.gov.uk/info/...blic%20comment'

[pmappy]

Yes. We're going to put some concerns in on the planning application, but I don't think access through our garden will make any impact on it. Traffic will, as the village has had increasing problems with parking and traffic flow, but I'm going to have to research the other grounds for concern.

[des8]

It isn't the traffic through your gaden i was thinking of, but rather change of use from residential to business in (possibly) a residential area.

Case law (and here I refer to England) isn't consistent , but possibly the easement could be suspended or revoked if its use was intensified by events outside what was originally envisaged.
Probably worth at least an initial (fixed fee or even free) consultation with a solicitor to see what options you might have

[pmappy]

I'll look into that. Thank you.

[pmappy]

Hi again. I feel a little foolish.
I went back to the burden. It says 'right of access to and egress from the rear of the subjects hereby disponed over and across a strip of ground 2 feet 6 inches in width tinted blue on the Title Plan'. Normally these say by foot, or something, but this didn't, and I wondered why it was so vague. Our solicitor didn't flag the access up as a big problem when we bought the house either. I also hadn't actually seen the title plan. So I did some digging.
This is where it gets weird. The last couple of meters of the strip tinted in blue on the title plan, is actually in the neighbours garden, so I decided to get a clearer copy of the plan. It turns out that our neighbours put a new garden gate in, between the viewing and survey and us moving in, and took over part of our garden, without us ever realising. I can't believe how stupid we've been.
The access strip ends around a corner from the real boundary between the gardens. I've been into their garden, as the house is still empty, and I can see the boundary fence coming down, and then it just stops behind our shed. It is out of view from our property, and it never occurred to me that they would have removed part of it.
It should run right down to their house, with around a meters gap between the end of the access strip and the property boundary. I can't see how there is any access from our garden into theirs. What they have is a strip of land, 30 inches wide, that runs alongside their house wall where it backs on to our garden, which they can access to paint the house etc. Nothing more (unless I'm reading these plans wrong!).
I have to say, it's not a part of the garden I would go to war over. They are welcome to the extra strip of land, but us reclaiming it will put a stop to lots of strangers walking through our garden.
We still haven't met the new neighbours, or found anyway of contacting them, so I'm now not sure how to proceed. We could remove the gate and move some of our stuff around to the back of the shed, to try to make a point. My hubby said we should just put a new fence in for our selves, but the burden states that the boundary fence had to be installed and maintained by them, I'm assuming on their side of the boundary. So, some new questions:
1. Can the new owners claim that they own the land because the previous owners effectively stole it? If so, could I say that we allowed our elderly neighbour to have use of that area, but that was a private agreement between us, and not a permanent arrangement?
2. Do you think putting some sort of barrier up in between the properties is a good idea, or is it a bit passive aggressive? I don't want to start a war!
3. That wall that the boundary fence is resting on (see pic) has been removed on the plans they have submitted in their planning application. It is being rebuilt (although I don't know what material will be used) a couple of feet further up their garden, to allow for the extension they are building. Can they do that, as it's partly owned by us?
I attached a snip from the plan too, so you can see where they put the gate. It is absolutely in our garden, and not at the boundary.
Thanks

[dslippy]

Your interpretation of the plan appears to be correct. What is not clear is the relevant values of the various bits.
Your approach is correct (as amaiable as possible). Talk to them. Selling a house where there is a dispute can be hopeless - who wants to buy their way into a multi thousand pound dispute headache. Buildimg a house resting in part on somebody else's land is just madness. They would be infinitey better buying you out.
Plannimng will not be interested in who owns the land.