British Waterways owns the bottom of my garden

[Land Lubber]

Hi all,

 

I'm looking for a bit of advice. I hope you can help.

 

We've lived next to the Lancaster Canal near Preston for getting on ten years. When we bought the house we were told that the bottom section of the garden, which backs onto the offside of the canal, is not ours. It belongs to British Waterways, some of our neighbours have paid a small amount of rent over the years to BW (a few pounds per year) to acknowledge this fact.

 

When we moved in we enquired about this but got nowhere, so we thought no more of it.

 

The other day we received a demand from solicitors representing BW for us to sign an agreement for the tenancy of their land. They’ve sent similar demands to all of our neighbours. They want £200 (£300 in some cases) +vat per annum plus a £75 +vat administration charge. Renewable on an annual basis (which means it’s going to go up) and cancellable by BW with little notice.

 

Have any of you heard of this practice before?

Does the price compare to your similar experiences?

 

I know little about canals and canal-side law/rights and responsibilities. Have you and useful links or experiences to share that help me to understand the situation better?

 

I don’t mind paying them, but the tiny strip of my garden cannot be worth their asking price and I am concerned that by signing up I am acknowledging their ownership and the will cancel so they can do what they will with it.

 

A lot of my neighbours have, through hard work over the years, have made this section of the canal a interesting and enjoyable place which I am sure bring a lot of pleasure for passing boaters and pedestrians alike.

 

Thanks,

 

Land Lubber

[carlt]

Tell them you're not interested and you will fence it off from your property. Then tell them that, in order for them to access your property for maintenance, and to cover any potential damage that their access may incur, you'd like to enter a wayleave agreement with them for which you require £2000 pa.

 

Then wait 15 days.

[fuzzyduck]

In addition to Carls posting, i'd make them pay for the fence, and tell them you will hold them liable for all intrusions of plants etc from their bit of land to yours.

 

I have to say as a boat owner, I should find the fact they are trying to seek alternative monies encouraging, but this has to be scraping the bottom of the barrel. But I suppose the more people who BW piss off, the better, when the revolution comes.

Edited November 26, 2007 by fuzzyduck

[Guest]

Tell them you're not interested and you will fence it off from your property. Then tell them that, in order for them to access your property for maintenance, and to cover any potential damage that their access may incur, you'd like to enter a wayleave agreement with them for which you require £2000 pa.

 

Then wait 15 days.

Sound advice I would think, with one exception. They must surely pay for at least half of the fence?

[Land Lubber]

Thanks for the quick reply.

 

I'd never heard of a wayleave agreement before. It's useful to hear of such things as searching the Internet for advice is difficult if you don't know the terminology involved, reading up on it now.

 

I like the idea of getting them to pay for a fence if it comes to that, but a more agreeable compromise could surely be reached. A fenced off canal can’t be in line with their mission statement:

 

"The heritage and environment of the waterways will be conserved, improved and made to work well for future generations"

 

Cheers and keep'em coming,

 

Land Lubber

[NB Willawaw]

I'd also be tempted to see if they would consider selling the land to you - i.e. see what value they attach to the land.

It might make your house more valuable in the long run.

 

As others have said, I would tell them to stick their rent and adopt a sale or nothing attitude.

[Ray]

When my daughter bought her house recently, she was told who had responsibility for fences at the boundary of her property. We bought our house over 20 years ago and I think we got the same information. Consequently, I think you should check who is responsible for what at the bottom of yours. If its yours you can put up something minimal. If its their's and isn't there, I think that you could threaten all sorts of things and force them to put a fence up to keep boaters out of your garden and charge them for accesss to erect the fence unless they can get a boat there and do it from the water side.!

 

There's something about a 7 year rule as well. If they haven't had rent from anyone for a while - is it seven years? - then it beggars the question as to whether you may have squatter's rights or something similar. I'm sure a solicitor would advise and if all your neighbours got together the cost might not be that great.

[WJM]

Get a property lawyer on to it immediately.

 

You may well have squatters rights or it may be worth sticking them out for a purchase. Whatever, dont try to guess the law - get an expert on your side.

[Mr Baites]

yer an send em a bill fer alt mayntanance yu dun overt last yers unall tharll stop em

[Land Lubber]

Hi NB,

 

Although some people have bought the land from BW years ago they have stated that no further land will be made available for sale. I would love to buy it as I have already been maintaining it for years myself. We haven’t seen BW doing anything on the canal until they recently felled a bunch of trees on the off-side (making the backs of our houses more accessible to the local unfriendlies, by the way)

 

Hi Ray,

 

This is 7-year-rule type of thing is something that concerns me. I’m going to try to find out (not sure how yet) when was the last time any rent has been paid, if ever. By signing up to an agreement I may waive any rights that fall within this kind of ruling. BW are even contacting us by name, just “the occupier” which to me, is just junk mail.

 

As neighbours, we are starting to band together. Treatment like this by faceless officials can really bind a community under a common purpose. I wonder if BW are taking similar action elsewhere on the network? Or is this a sign of them testing the water, excuse the pun .

Thanks for reading this and continuing to comment, it is really appreciated.

 

Here’s a background story from our local paper (Lancashire Evening Post)...

http://www.lep.co.uk/news/Canal-gardens-bi...nger.3444665.jp

 

I am wondering if there’s an ulterior motive too...

http://www.lep.co.uk/news/Water-taxis-plan...city.3490248.jp

 

I’m not sure how you guys are going to get along with these “taxis”.

 

Cheers,

Land Lubber

[carlt]

Thanks for the quick reply.

 

I'd never heard of a wayleave agreement before. It's useful to hear of such things as searching the Internet for advice is difficult if you don't know the terminology involved, reading up on it now.

A wayleave agreement is an agreement between utilities providers and landowners enabling them to gain access over the property to maintain, install or remove equipment.

 

It is a useful lever because knowing your rights lets them know you don't intend being pushed around.

 

When they dismiss the wayleave agreement suggestion, you can then inform them that you will expect them to adhere strictly to the terms of section 5 of the Waterways Act 1995 and you will certainly be exercising all your rights laid down in this section.

 

It's amazing, if you add up the timescale of the appeals, counter appeals etc, how irritating (and expensive) you can be.

 

5 Notice of entry, etc

(1) Where the Board have reasonable cause to believe that—

 

(a) the carrying out of relevant operations other than emergency operations is necessary; and

 

( it would not be reasonably practicable for the operations to be carried out without entry on to land (other than a highway or, in Scotland, a road) adjoining or in the vicinity of an inland waterway;

 

the Board may serve a notice (in this Part called "a notice of entry") in the terms prescribed in subsection (4) below.

 

(2) A notice of entry shall be served—

 

(a) on the owner of the land;

 

( on the occupier of the land, if not the owner; and

 

© on every relevant undertaker.

 

(3) A copy of every notice of entry shall be posted in some conspicuous place on or near the land specified in the notice not less than 28 days before entry is proposed to be made.

 

(4) A notice of entry—

 

(a) shall specify—

 

(i) the land on which entry is proposed to be made;

 

(ii) the nature of the relevant operations, the manner in which it is proposed they should be carried out and the nature of any apparatus to be placed and left on the land in connection with the relevant operations;

 

(iii) the date upon which it is intended that the relevant operations will commence (which shall not be earlier than the day after the last date upon which a counter-notice under subsection (5) below may be served in respect of the notice of entry) and their maximum duration; and

 

(iv) the hours during which the relevant operations are to be carried out;

 

( shall contain details of the rights to object to the notice (including a form of counter-notice for use by the recipient pursuant to the following provisions of this section) and to claim payment for such entry together with compensation under this Part; and

 

© shall state that it would not be reasonably practicable for the operations to be carried out without entry on the land specified in the notice.

 

A person served with a notice of entry may, within 28 days from the date on which the notice is served on him, serve on the Board a counter-notice (in this Part called "a counter-notice") stating that—

 

(i) he consents unconditionally to the entry by the Board on the land described in the notice and to the carrying out of the relevant operations specified in the notice, in the manner so specified ("the proposals of the notice of entry"); or

 

(ii) he objects to the proposals of the notice of entry on any one or more of the grounds mentioned in subsection (6) below, which shall be specified in the counter-notice.

 

( If the recipient of a notice of entry does not within 28 days serve a counter-notice on the Board, he shall be deemed to have granted his consent unconditionally to the proposals of the notice of entry.

 

(6) The grounds upon which objection may be made to a notice of entry are—

 

(a) that it would be reasonably practicable for the operations mentioned in the notice to be carried out in some other way not involving entry on to the land specified in the notice;

 

( that the carrying out of the relevant operations is unnecessary;

 

© that the maximum duration of the relevant operations, as stated in the notice of entry, is excessive, having regard to the nature of the relevant operations;

 

(d) that there has been some informality, defect or error in, or in connection with, the notice;

 

(e) that the notice should lawfully have been served on another person;

 

(f) that the proposals of the notice of entry will interfere unreasonably with the use and enjoyment of the land by the recipient of the notice of entry and that the Board should be required to comply with the conditions specified in the counter-notice with respect to those proposals, or that the proposals should be modified in the manner specified in the counter-notice for the purpose of reducing or preventing such interference;

 

(g) (where the recipient is a relevant undertaker) that the proposals of the notice of entry would be detrimental to the carrying on by the recipient of its undertaking and that—

 

(i) having regard to the detriment entry by the Board should not be permitted; or

 

(ii) the Board should be required to comply with the conditions specified in the counter-notice with respect to those proposals, or that the proposals should be modified in the manner specified in the counter-notice, for the purpose of reducing or preventing such detriment.

 

(7) Upon receipt of a counter-notice the Board shall within 28 days—

 

(a) inform the recipient of the notice of entry in writing that—

 

(i) the notice of entry has been withdrawn (without prejudice to the right of the Board to serve a further notice of entry on the recipient or on any other person); or

 

(ii) the Board will accept and comply with the conditions with respect to matters such as are mentioned in subsection (6) (f) or (g) above and specified in the counter-notice or modify the proposals of the notice of entry; or

 

( where the person is a relevant undertaker, refer the counter-notice to arbitration; or

 

© in any other case, appeal against the counter-notice to a magistrates' court or, in Scotland, to the sheriff having jurisdiction over the area where the land to which the notice of entry relates is situated.

 

(8) On any reference to arbitration under subsection (7) ( above the arbitrator or, in Scotland, the arbiter may have regard to any court order made on any appeal under subsection (7) © above relating to the proposals of the notice of entry which is the subject of the reference.

 

(9) On any appeal under subsection (7) © above, the court or the sheriff may have regard to any award of an arbitrator or, in Scotland, an arbiter made following a reference under subsection (7) ( above relating to the proposals of the notice of entry which is the subject of the appeal.

 

(10) An appeal under this section shall be by way of complaint for an order or, in Scotland, by way of summary application.

 

(11) For the purposes of the time limit for bringing an appeal under this section, the making of the complaint or, in Scotland, the lodging of the initial writ shall be treated as the bringing of the appeal.

 

(12) In so far as a counter-notice is based on the ground of some informality, defect or error in or in connection with the notice of entry the court or, as the case may be, the sheriff, arbitrator or arbiter shall uphold the notice of entry if it or he is satisfied that the informality, defect or error was not a material one.

 

(13) On the hearing of the appeal the court or, in Scotland, the sheriff may make such order as it or he thinks fit.

 

(14) A person aggrieved by an order of a magistrates' court or the sheriff under this section may appeal to the Crown Court or to the sheriff principal, as the case may be.

Edited November 26, 2007 by carlt

[tony collins]

Have any of you heard of this practice before?

Does the price compare to your similar experiences?

 

Yes I have heard of it. Some houses in Blisworth back on to the towpath, and you can see some of them have two "back fences" about six feet apart. All of the householders tend the middle piece, and some have done away with the second fence and have extended their garden right up to the towpath fence. Until fairly recently (up to about 3 years ago from memory) the tenants paid a nominal sum for the extra bit of garden in return for looking after it. Then suddenly BW wrote to them all saying that the "rent" was going up to several hundred pounds a year. The last I heard some of the people had told BW they could have "their" six feet back and a mass non-payment campaign was started.

 

Sorry, I don't know the outcome, but it seems that you are not the first to suffer this demand.

 

Tony

 

Edited, to say: I have the address of someone living in the road affected if your solicitor needs it.

Edited November 26, 2007 by tony collins

[Land Lubber]

Wow, thanks for the Waterways Act extract carlt!

 

I especially like the section of notice of entry served on the occupier, even if not the owner.

BW having to prove that any relevant operations are necessary and cannot be carried out in some other way not involving entry to the land is useful too.

 

I am not generally in the habit of being obstructive, but I can’t help feeling angry about the way they have gone about communicating their plans with us. I’m hoping to bring the Freedom of Information act to bear in order to discover exactly what their plans are and the information you guys are posting is making me all the more informed ( and hopefully harder for BW to ignore).

 

Cheers also Tony, I was hoping that some similar stories would come to light. We haven’t got a Solicitor (yet) but I may get back to you on that. I expect the hard work of the people of Blisworth did nothing but enhance the area alongside the canal for the benefit of all, only to have it thrown back in their face.

 

Thanks,

Land Lubber

[David Schweizer]

There's something about a 7 year rule as well. If they haven't had rent from anyone for a while - is it seven years? - then it beggars the question as to whether you may have squatter's rights or something similar. I'm sure a solicitor would advise and if all your neighbours got together the cost might not be that great.

It is actually 12 years. The 1980 Limitation Act allows you to legally claim land as your own. if you have been allowed to use that land un-obstructed without consent and as if it were your own land for a peruiod of 12 years.

 

However if the land has been registered by BW under the 2002 Land Registration Act , your right is repealed even if 12 years have pased and you have not registered it as your own.

 

You need to talk to a solicitor, Fast.

[Chris M]

The other day we received a demand from solicitors representing BW for us to sign an agreement for the tenancy of their land. They’ve sent similar demands to all of our neighbours. They want £200 (£300 in some cases) +vat per annum plus a £75 +vat administration charge. Renewable on an annual basis (which means it’s going to go up) and cancellable by BW with little notice.

 

Have any of you heard of this practice before?

Does the price compare to your similar experiences?

 

I share an end of garden mooring with 4 other boats. The bankside belongs to BW. To access the mooring I must cross private land. 2 years ago the private land changed hands and whilst the solicitors were dealing with the land registry somewhere along the lines BW got involved and started billing £600 per annum for rental of the 'end of garden'. The agreement is for 85 meters by 3ish meters. This year the charge went up by the rate of inflation.

 

How much land are they trying to charge for? does our rate compare ??

[Dr Bradley]

I presume you've checked what the land registery designate as your boundaries. If not it is the first step and can be done online.

[dor]

It's unlikely that BW would want access over your land if it just a strip next to the canal that they own. The most they are likely to want to do is pile it and they would do that from the canal.

[Chris M]

It's unlikely that BW would want access over your land if it just a strip next to the canal that they own. The most they are likely to want to do is pile it and they would do that from the canal.

They crossed the private land I mentioned above to cut down a tree. Once in a blue moon that happens but there are cases where it's required to cross other peoples land.

They might one day turn up unannounced and lay a pipe or cable through the plot!

[Sir Nibble]

Mark off the boundary shown on your deeds onto the land. At your side of the boundary immediately adjecent to it, place 2 or 3 Beehives.

[WJM]

"They might one day turn up unannounced and lay a pipe or cable through the plot"

 

That is probably where the real value of that land comes from - it is BW seeking to maximise the return on it's assets. That might not be good news for you though.

 

Though not canal related, there is a patch of land near me which has some disputed title - legal advice tells me that the presence of a fence around it has important legal significance if it can be proven that the fence is there for 15 years.

[PaddingtonBear]

LL should thank his/her good fortune in getting away with it for so long and £5 per week is not that much in the scheme of things for direct access to the 'cut' - could you then have an end of garden mooring? and thereby add value to your property? It might be considered by others much more cynical than me that by not paying you are in the same moral position as those who don't pay their licenses, albeit at a somewhat lower level. I am certain that if I or most of the users of this forum were in the same position as BW, namely someone was effectively squatting in our land I would take suitable action In any event it would be remiss of BW to ignore the activities(as they have up until now) and it would be wrong to allow you to develop a position whereby you could prevent them from acting for the greater good at some later date. This country is littered with small pieces of land where the owners 'blackmail' those acting for the common good. I know that this is very much a minority view(of one?) but we really must not keep going on as only we exist.

[magpie patrick]

I think if anyone is doing the blackmailing here it is British Waterways! It isn't just that this (and other) piece of land technically belongs to BW (and I don't doubt it does) but it's the demanding money with menaces approach that is then taken. There is, on occasion, a huge difference between natural justice and the law. In this case, BW have been neglecting to exact a charge that is probably their right, and haven't even advised the plaintiff what that charge should be. they then land on the doorstep with the heavies and demand a sum of money that not everyone can lay their hands on at short notice, and it doesn't even occur to them that the other party may prefer to withdraw from the land rather than pay. They are using the law (And not very well)

 

Natural justice would suggest a letter with an apology and stating the BW have become aware of their right to levy a charge. Historically this charge should have been X but in view of failure they suggest XX and payable in interest free instalments. As this has now come to light the charge in future will be the going rate Y. However, if in view of this charge the occupant no longer wishes to enjoy use of the land then the occupant should erect a boundary fence and advise BW they have done so. If this course of action is taken then the matter will rest there.

 

They don't just do this on land either: in Hockley Port (nine of hearts may know about this) they failed to bill the boaters for electricty for about 18 months: then sent the bill as a single lump sum, then sent out final demands within a couple of weeks to those who didn't pay pronto, with dire threats like siezing boats and refusing to renew licences. I've never moored there but I know boaters who do and I saw the letters. It's BW bully boy tactics that end up being counterproductive.

 

BTW, I have an unusually long end of garden mooring because the plot next to my hosts house was left vacant as it's over a railway tunnel. Network Rail own it rent the plot to my host but if he didn't want it any longer (and for a long while someone else rented it) he would simply cancel the agreement and fence it off from the rest of his garden. I can't imagine network rail suddenly deciding that it was in his garden whether he liked it or not and he'd better shell out a shedful of money or else, which seems to be what BW are trying to do.

[WJM]

Ah Magpie;

 

Image that your long lost uncle dies and bequeaths you 100 miles of canal bank. Then BT want to put large sums of money in your pocket in return for laying a 100 mile fiber-optic cable. It is all going great till you discover some damn squatter on one tiny section. Isn't it amazing how different a set situation can look when you change nothing other than your own perspective?

[magpie patrick]

Ah Magpie;

 

Image that your long lost uncle dies and bequeaths you 100 miles of canal bank. Then BT want to put large sums of money in your pocket in return for laying a 100 mile fiber-optic cable. It is all going great till you discover some damn squatter on one tiny section. Isn't it amazing how different a set situation can look when you change nothing other than your own perspective?

 

Yes, but if this happened I wouldn't go out of my way to put the squatters nose out of joint, which is what BW seem intent on doing. To continue your scenario, long lost uncle would have been allowing this to happen, it was a situation I had inherited. If your scenario were correct (and I doubt it because the gardens are on the non-towpath side and this hypothetical cable would have to be trunked through all the bridges as there is no towpath) then it would be a good idea to avoid confrontation and it might even be helpful to suggest subtly that they may prefer not to occupy the land any more.

 

But I tend to be non-confrontational. My ex wife thought confrontation was the best way to get what you want, in the short term she was right, but in the end it got her a divorce.

[Land Lubber]

Hi Chris M,

 

>How much land are they trying to charge for? does our rate compare ??

I reckon it’s about 12 feet by about 4. Not much bigger than the pavement outside the front of my house. But as Dr Bradley points out, I need to check this with the land registry ( I’ve just found the online service and will follow it up a.s.a.p. Thanks. )

 

>They might one day turn up unannounced and lay a pipe or cable through the plot!

I hope this is where the provisions of the Waterways act would allow for due notice and necessary operations to be taken into account.

 

Hi PaddingtonBear,

 

I can see your point but it sort of feels like the Council turning up at our house and demanding an immediate payment for the rent of the pavement outside our house, at a price they have decided as it gives us direct access to the ‘road’. The rental agreement also states that the price will go up annually at their discretion. Also, we are responsible for the maintenance of said pavement and should re-lay the tarmac on a regular basis and keep it in a tidy fashion.

 

As I said in my OP, we enquired about tenancy when we bought the house and got nowhere with BW. Squatting generally means that we are using the land, all we have done (an ongoing task) is tried to tidy it up a bit. We can’t build on it or ‘use’ it effectively. Yes we do have direct access to the ‘cut’ but as the name implies we don’t own a boat (I would like one though and I have enjoyed checking out all the photos on this site) and I think we are a little close to a bridge for a mooring. The bottom of the garden is not very wide at all. Of course, we enjoy the canal and its presence can only add value to our property.

 

I am not trying to avoid payment; I just wish to pay a fair price and be treated civilly by BW. I expect them, as a public body, to be transparent with their plans for the area and communicate with all canal ‘stakeholders’ effectively – be they boaters, neighbours, anglers, dog walkers etc.

 

I have posted on this forum in an attempt to become more informed. The replies that have been posted are helping me to do so and I appreciate the advice and opinion, even yours Paddington.

 

Thanks,

Land Lubber