Access to Forestry from a private road

Easten

I have land along one side of a shared private avenue. It is shared with 3 others. 2 of the 3 have since sold some land to a forester (about 20 acres) who has planted the land for forestry, the Dept. of Agriculture gave permission to plant.

Now my issue is that there is now a large forestry access with a loading area for the felled trees at a later date onto this private road. Also the forester in question owns several hundred acres of forest adjoining this newly planted land but has began making a road to the mature forest with the view to felling the trees and removing them via the shared road. The same road has already been degraded wrecked in parts from lorries drawing gravel in the road.

I never gave or was asked for permission to use this road as a forestry access.

Where do I stand on this or am I too late to stop them?

AnRothar

https://www.boards.ie/discussion/2058209980/access-to-forestry-from-a-private-road

2 of the 3 have sold land.

Whatever access rights existed would also probably have transferred.

Pay 5euro per folio and you can see whatever covenants exist.

Easten

https://www.boards.ie/discussion/comment/117935176#Comment_117935176

Thanks for the reply, Yes I agree, they would have passed on access rights to the forester. I'm not sure where I could pay the 5 euro to get this information but would gladly.

Would commercial forestry not be a change of use of the road to what the original owners used the road for? in my eyes theirs a big difference in going in and out of the road with a small 35x tractor to going in and out with big 18 wheeler artic trucks and also tracking excavator machines and forestry equipment along the road.

The other issue is the roadway will be used for timber from forestry bounding this new planted land. The newly planted land which the 2 sold is less than 20 acres. The bounded forestry land never had permission to use the private road in the past is nearly 200 acres, so surly the road can only be used for the 20 acres?

AnRothar

Landirect.ie will give you a copy of the folio if it's on file.

Charge is 5 euro.

I did it for my father in law.

There was a yellow section on the map showing their rights to access a neighbouring field where their septic tank is.

Regarding how "commercial forestry" is defined for planning I have no idea .

Accessing 20 or 200 acres I don't think it matters.

Claw Hammer

It may well be intensification of the existing planning use. These issues have been arising with quarries for decades.

60 years ago it was a cart-load of stone every 3 weeks. Now there are 5 axle lorries 7 times aday.

Easten

https://www.boards.ie/discussion/comment/117937226#Comment_117937226

Yes that is a similar issue, there must surely have been court cases over such in the past.

Easten

https://www.boards.ie/discussion/comment/117936692#Comment_117936692

Again idk if access change from the original 20 acres to now 200 acres can be done. In my eyes they are separate farms that had separate entrances over the years.

A similar situation would be a small housing estate of twenty houses, a builder buys a field at the back and now builds 200 houses with access through the original estate. Is this a done thing?

cap.in.hand.

This 20 acres have opened access to the road to the new owner which maybe..was the original plan on buying it...did you ever think of buying those 20 acres...I know hindsight is great afterwards... forestry I'd say would be classed as agricultural activity more so than commercial as regards land use and road usage

Claw Hammer

https://www.boards.ie/discussion/comment/117937654#Comment_117937654

There have been numerous cases regarding quarries.

FoFo1254122

https://www.boards.ie/discussion/2058209980/access-to-forestry-from-a-private-road

best advice is A good conveyancing solicitor will answer any questions you have

you may even get some work done by the contractor to your boundary or the access route to keep you in side

depends on how far you want to push it

AnRothar

https://www.boards.ie/discussion/comment/117937664#Comment_117937664

Off topic slightly but relates to the last part of your post.

Part of our estate consisted of a cul de sac with a hammerhead turning circle.

Builder purchased extra lands beyond this after the crash when a large company went bust.

Approx 2 years ago they submitted a new planning application to continue last the hammerhead and build more houses.

From what I can see on the Council website planning has been approved.

He did kindly offer one house a bigger garden as a result of straightening the road.

Easten

https://www.boards.ie/discussion/comment/117937692#Comment_117937692

Never got the chance of it.

I think I will speak to a conveyancing solicitor as it does not seem very clear as to how much access to the road the Forestry has. I don't want to end up finding out that I could have done something about it back then but have left it too late.

ittakestwo

https://www.boards.ie/discussion/comment/117937664#Comment_117937664

Yes. It sounds like they could be breaking the Harris v Flower rule of rights of way.

This is basically a rule that means the owner of land with the benefit of a ROW (dominant land) can not buy neighbouring land that does not enjoy the ROW (non dominant land) and start using the ROW to access the non dominant land.

I presume you are one of the owners of this avenue? If you think one of the other people who have a ROW over the avenue is breaking the harris v flower rule you can take an action for tresspass.

However you can only do this if you are actually one of the owners of the avenue and not just enjoy a ROW over the avenue. The avenue has to be partly on your land. You can stop a tresspass on land you own. You can't stop a tresspass on lands you don't own even if you enjoy some rights over it like a ROW.

YipeeDee

https://www.boards.ie/discussion/2058209980/access-to-forestry-from-a-private-road

So three of you shared the avenue, did you all own it together or did you all share right of way over it?

Easten

https://www.boards.ie/discussion/comment/118148783#Comment_118148783

I own the land to the centre of the road, the forester owns the other half. There is a right of way belonging to another man to access his house, he sold some of his land to the forester too so I am even questioning now did he give away his right of way. also there is a private house which was part of the land that the forester bought but was separated and sold separate.

So to sum it up, the road once was used by 3 farmers now has 4 people using the road. I don't have an issue with the private house as they are not over using the road or damaging it. The issue is the increased use of the road by the forester from land that never had access to the road.

YipeeDee

https://www.boards.ie/discussion/comment/118149974#Comment_118149974

Okay so first off, the guy that only has right of way on the Avenue that sold some of his land to the forester.

No, I would doubt very much that he’s given away his right of way. I’d be 99.9% sure he’s retained it.

So this comes down to both you and the forester owning half the Avenue equally?

( You own from your side to the centre of the lane and he owns from his side to the centre?Is that correct?)

For you to proceed with this and gain full ownership and sole access, you’ll first have to remove the neighbours right of way to his house, I doubt you’re going to be able to do that as that person has been living in the house and using the right of way.But if it’s possible and you succeed, then it’ll be down to a battle between yourself and the forester.

Split the Avenue in half down the middle and neither one of you can use it to get to your property?

You’re in for a very long case here.

Might be an idea to just call a meeting between all parties using the Avenue and put it to the forester that his vehicles are causing excess damage which none of you feel is fair to be shouldered with the extra cost.

See if you can amicably come to an agreement whereby you pay the same sum you’ve always paid for maintenance and he pays his share plus the extra costs of the damage caused by his trucks?

Easten

https://www.boards.ie/discussion/comment/118151663#Comment_118151663

Yes the lane is equally owned by the forester and me.

I can't see how the guy who sold some land to the forester can retain access to the lane, sure if that's the case what's stopping me building 4 or 5 houses on the lane and letting them have a right of way too. There was only 1 right of way for him. either way he's not the issue and I'm not trying to gain full ownership or even stop any of the others accessing the lane. I do want to restrict the forester from only using the lane for the purpose of accessing his forestry that was the original 20 acres that had access to the lane. As it stands, the forester wants to use the lane for access to another 400 acres of forest beyond the original 20 acres. I really can't see how that is ok as it is a huge increase in the use of the lane. That 400 acres never had access to the lane.

I know what you are saying wrt mediation, but I have it from good authority that this forestry Co. make all kinds of verbal deals and promises but do as they please after.

I want to deal with the Issue now and not find out in a few years that I could have done something but its too late. I do think it is like what ittakestwo said above in that he may be breaking Harris v Flower rule of rights of way. I read up on this but afaik this is an English case in law. Is there any case like this in Ireland or would the Harris v Flower rule of rights of way apply in Ireland as we were part of the UK when the case in court

cap.in.hand.

You can put in objections to any felling licences he would have to apply for that plantation

YipeeDee

https://www.boards.ie/discussion/comment/118152402#Comment_118152402

I would need to see actual site maps for sure.

But if the farmer that sold the land is still living in his house, and the Avenue is the access point to his dwelling.

Well then the house will retain the right of way as its access.

It would be next to impossible to remove right of way to an inhabitant dwelling.

If you owned the Avenue in full on your own, and your land needs it for access, then yes you could permit right of way to whoever you might sell sites to.

Sorry I can’t help more, it’s difficult to say without seeing maps. I’m just trying visualise from what you’ve described.

ittakestwo

https://www.boards.ie/discussion/comment/118152402#Comment_118152402

A ROW is an easement ( a right of one piece of land over another). It attaches to the land and not the person who owns the land. If the person sells the land the easement automatically goes with the land. From reading your post you seem to think a ROW attaches to the individual who owns the land. This is a common misunderstanding of ROW's.

Example. If I own a field and it has a ROW over a private track. I can sub divided my field into ten different portions and sell them on. Each owner of the portion sold will have a right to use the track because the ROW attached to all the land I sold. It was all dominant land

What I cant do if I own a field which has a ROW over a track. Is buy a neighboring field that never had a ROW over the track and then start using the track to access both fields. Because the field I bought never had a right to use the track ( non dominant)

In your situation you say a person who did have ROW sold some land to the forester. Well then the land he retained still enjoys the ROW as does the land he sold to the forester. Only if the forester has bought land that historically never had a ROW over the track and is now using the track to access this then you can bring an action for tresspass. You say that he is now using the track to access 400 acres that historically never had a ROW. That is a breaking the Harris v Flower which does apply to Ireland too.

cap.in.hand.

https://www.boards.ie/discussion/comment/118156498#Comment_118156498

From the information supplied on here by the OP,it's a private road on land owned by landowners so the right of way (ROW) doesn't really apply to these landowners and more relevant to private homeowners

ittakestwo

https://www.boards.ie/discussion/comment/118158298#Comment_118158298

The OP said they own up to the middle of the road/avenue. That implies there is a reciprocal ROW over the other halve they don't own. Also the road before leading to the public road may pass through lands not owned by the OP.

If there is a private road which goes through a few properties land then each property owner will have a ROW over the part of the road not on their land.

A private rural road is almost never a property in its own right that is jointly owned by the people who use it. If it was then nobody would have a ROW because they were all joint owners of ALL the road ( you can only have a ROW over lands you don't own).

It is much more likely that it is just a road that passes over a few properties with everyone having reciprocal ROW over the land they don't own.

cap.in.hand.

https://www.boards.ie/discussion/comment/118159414#Comment_118159414

There is a private road on my lands and I own up to the middle of that road where my land adjoins ..1 of the house owners living on the road opened up a garage servicing motors behind his house about 25 years ago and has built up a huge client base and 90% of traffic using this road is connected to his business... agricultural business and home access were probably the dominant uses of this road up to that time.so does this commercial garage have the right to operate and are his clients trespassing?

ittakestwo

https://www.boards.ie/discussion/comment/118159587#Comment_118159587

It is probably too late for you now to object. Even if he initially did not have a right to use it for that purpose over 20 years has passed which means he can claim a right by prescription.

But to answer the question. If the right is an express ROW (ie deeded on your property title) and was for "all purposes" then they may have had that right initially. If the ROW was created by prescription than you are limited to that use. Ie if I create a ROW by walking over my neighbours land to mine over a 20 year period I then can't come along and start to drive over their land and claim my ROW allows me to do this. For prescriptive ROW you are limited to use of how it was created over the 20 year user period. So if your neighbour only ever had a right by prescription from using the land for agriculture purposes then it was unlikely they were allowed to change it to commercial.

If somebody you think is trespassing it is much better to object and start an action than acquiesce for a long period.

cap.in.hand.

https://www.boards.ie/discussion/comment/118159835#Comment_118159835

I don't live on or need to use this road currently and a hedge was created on the land side of this road back then when it was put in place...but I think I would be entitled to put entrances from my land onto that road if needs be in the future...I don't think I'm limited to the amount of land I own to have access to the full length of the road as that would be limiting my rights to expand my land holdings for my business in the future..so in the foresters case all their land including the 20 acres with road access he bought is included in all their land portfolio rights and a clever move on their part to buy into the road access