A father-of-two who bought land next to his house so he could extend his garden has been told he will have to allow the public access to it.
Richard Hickson has been told he faces prosecution and even prison if he does not take down the fence around the extra land he bought in 2018.
The 37-year-old bought the "unused" patch of grass in Istead Rise, near Gravesend, Kent, from developers P J Brazier and Company Limited for £5,000 then spent another £20,000 to turn it into a suitable garden for his two daughters, aged five and eight.
But now Kent County Council has ordered that the six-foot fence he erected around the land be taken down as it counts as a "publicly maintainable highway".
IT consultant Hickson said the news was "devastating" and means he will have to effectively give the public access to "an area that is a haven for our children's playtime".
He said: “It was just a bit of grass with trees. It was between our house and next door. It was not used by anyone, it was a litter trap, and people would park on it.
"It is devastating news. All we wanted was somewhere for our girls to play.
"We will now potentially have to dismantle a portion of our fence and effectively grant public access."
"It is concerning that if I had not bought it someone else would have and might have built a small bungalow on there.
"It is happening all over Istead Rise, people are trying to build houses on patches of grass but we just wanted a garden.”
Hickson said neither he and wife Jade, nor the developers selling the land, were aware that it was subject to highway rights, despite having sought legal advice.
"We would never have put the fence up or made it part of our garden if we knew," he added.
"We thought if you bought it through the land registry it was then yours to do with what you liked. We find ourselves embroiled in a property dispute that was not of our making."
'A property dispute that was not of our making'
The deeds for the land even state that the purchaser should erect and maintain "a suitable boundary fence or hedge on the sides of the said land" which should not be lower than four feet (1.2m) high and strong enough to resist cattle.
Hickson said he first knew of any issue when he received a letter from the council in February warning him that the fencing was obstructing the highway, which was an offence.
The letter from a senior enforcement officer added: "KCC has the ability to prosecute you for this offence and if found guilty, you may be liable to a fine, imprisonment, or both.
"As the highway authority, we have a duty to assert the rights of the highway user and therefore we require your immediate attention to this matter. The fencing surrounding the land needs to be removed immediately."
Another letter in August outlined various options available to the family including removing the designation of the highway from the land in question either by taking the case to court or via the government.
The letter stated the family needs to apply for permission to have a fence over a metre and to change the use from an open space to a private garden to avoid breaching planning laws and that they also need to pay the local authority a financial settlement for felling four trees, which it said were worth £2,120.
Hickson is in the process of securing the correct permissions and an order to remove the highway rights but said if cannot, he would sell the land and would even consider moving if they cannot keep their garden.
He added: "It sounds ridiculous. We could go to prison for putting up a fence. It has just been massively stressful.
"This is not going to benefit anyone and nobody cared in the first place. It is just costing everyone more money."
A spokesman for KCC said: "This is part of an ongoing legal process and we are unable to comment at this time."
Ward councillor Dakota Dibben (Con) who represents Istead Rise, Cobham and Luddesdown, who is supporting the family said he could understand the council's position but thought it was being "heavy-handed".
Can I claim a piece of land next to my house?
It is possible to claim a piece of land next to where you live, but only when certain conditions are met.
In what is known as 'adverse possession' you can claim land or property but you must already have taken possession of it, by putting a fence round it, for example, or living in the property.
According to advice from Co-op legal services, you will need to prove that you have occupied the land for 10 years for registered property or land and for 12 years for unregistered property or land.
Government advice says that adverse possession requires 'factual possession' of the land, with the necessary intention to possess and without the owner’s consent.
That means the person possessing the property or land had been dealing with it in the way that an owner would be expected to, but had not been, such as if someone had been tending and caring for derelict and overgrown land next to their property then putting a fence round it.
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