Garry Painter, a 54-year-old landscape gardener from Bromsgrove, has been ordered to knock down a wall around his garden that he built six years ago. The council ruled that it is obstructing the road.
How can this be fair?
DemolishedPainter had built the wall on his land when he gave his garden a makeover in 2007. The Daily Mail reported that he had moved into a barn conversion and spent £4,000 tidying up the plot of land next to it - laying turf and building a wall.
He told the Birmingham Mail that: "This small pocket of land is registered to us and is outlined by the Land Registry's official plan of which we hold many copies."
However, the council told him that he must take up the turf and knock down the wall, as it is obstructing the public highway. Apparently, although he owns the land, part of it has traditionally been a public highway, which means that he has a duty not to build on it, so that motorists and pedestrians can use it.
When he pointed out that he owned the land, they sent a letter to his solicitor saying: "The ownership is worthless to your client as it relates to the subsoil ownership only and does not supercede any highways rights that exist over the surface."
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Your rightsSurprisingly, the council is technically correct. In fact, the council rarely owns the land which roads runs over. Many people own the land up to the middle of the road outside their property. However, they only own the subsoil, so control of the land and the surface lies with the council (acting in their capacity as the highways authority). It's why we cannot extend our gardens out over the middle of the road.
In this instance the circumstances are strange because the land is on a highway which is no longer used as such. However, the rules on ownership remain: "Once a highway – always a highway" is the legal rule.
The council may be within its rights to insist that the garden is demolished, the question is whether it was right to enforce those rights given that the area isn't actually used as a highway at all any more, and Painter has improved its appearance dramatically.