Draft Vehicular Access Across Common and other Land (England) Regulations

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Mr. Jonathan Sayeed (Mid-Bedfordshire): It is a pleasure to serve under your chairmanship, Mr. Amess.

The Department for Environment, Food and Rural Affairs has described the purpose of the scheme—the Minister has confirmed this again today—as assisting

    ''those people who have, for many years, driven across common (and other) land to get to their premises, but who have recently found that they have no legal right to do so and who are faced with having to pay a large sum to the land owner in order to acquire such a right.''

As the Minister has confirmed, it is a criminal offence to drive over common land without the permission of the owner; prescriptive rights through long use cannot be acquired. That is sometimes overlooked when houses on or adjacent to common land have been built.

As a result, some property owners have found themselves in the invidious position that, although they and their predecessors have been driving across common land for many years to get to their homes or

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other property, they have no legal right to do so. Landowners are within their rights to charge home owners for vehicular access; in extreme cases that has resulted in charges equivalent to 10 per cent. of the value of the house being levied, and the value of that house being calculated with a right of access—we are not only talking about the value of the house, but the value of the house with the right of access.

I draw hon. Members' attention to a recent incident. About 100 residents living around Newtown common on the Berkshire-Hampshire border were affected when Lord Carnarvon sold the title of lord of the manor of Newtown to Mr. Michael Farrow in 1986 who put the common land into the hands of Bakewell Management—a private company owned by his wife—which then attempted to charge the residents for vehicular access over the common land.

A similar case involved Claverdon parish council, Warwickshire, which sought payments averaging £30,000 a house for each household to gain access. In the light of that, my right hon. Friend the Member for North-West Hampshire—I am sorry to say that he cannot be here as he is currently chairing a sitting of the Standards and Privileges Committee—raised the issue of residents around Newtown common, which is in his constituency, when he tabled amendments to the Countryside and Rights of Way Act 2000 during debates on Report in the House.

My right hon. Friend explained that, in 1993, the Court of Appeal decision in the case of Hanning v. Top Deck Travel Group gave a fresh interpretation to the law on vehicular access over common land. The court decided to deny access over a common to a business premises by double-decker buses. Private cars and private houses were not considered, but other lawyers who have studied the case assumed that they were similarly precluded from access. The court decided that, because it had been illegal to drive over urban and certain other common land since 1925, householders who had enjoyed free access could not acquire a prescriptive right through an illegal activity. Driving over common land was banned in 1930.

My right hon. Friend also asserted that the Law of Property Act 1925 was never intended to stop people driving over a common to their home, but to restrict members of the public from driving on commons while others were on those commons for ''air and exercise''. It is perfectly true to say that, between 1925 and 1993, no one was prevented from driving to his or her house across a common, but the courts have now denied that presumption of free access.

To seek some redress for his and other hon. Members' constituents, my right hon. Friend pursued the issue with the Law Society. On 24 November 1999, he received a letter that said:

    ''if solicitors carried out all the normal searches and no problems with access were revealed, then the solicitors would not have been negligent. If there is not clear negligence and they are simply the victims of one of the more arcane aspects of our legal history, ie laws concerning common land, they may be left without redress. If this is the situation, then they will have to look to Parliament to amend the appropriate law.''

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In summary, householders who are affected cannot hope to sue their solicitors, and they therefore want the law to be changed.

My right hon. Friend's amendments on Report would have restored the position to that before the Hanning v. Top Deck Travel Group case, so that nothing would be payable and people would have a right, which they always thought that they had, to cross common land to get to their own property. The Government did not accept those amendments.

After continued pressure by Members of the House of Lords, the Government belatedly confirmed their intention to amend the Countryside and Rights of Way Bill. Before the Bill completed its passage through Parliament, new provisions were added to give the Secretary of State the power to make regulations, which would contain the details of the scheme.

I understand that the main elements to be included in the scheme are, first, that the property owner, or his predecessor, must have been using the access in such a way and for such a time that, if the land had not been common land or other land on which driving is prohibited, a prescriptive right of access through long use would have been required and, secondly, that there should be a limit on the amount of compensation that the property owner has to pay to the landowner.

The Minister has confirmed that the Government's current view is that the compensation sum will be between 0.25 per cent. and 0.5 per cent. of the value of a property for residential properties built before 1 December 1930 and where use of the property has been materially unchanged since that date. For other properties after that date, it will be 2 per cent. of the value or one third of the increase in the value of the property with a right of access, if that were lower. It is also important that members of the Committee understand that no part of the regulations prevents the two parties from coming to an independent arrangement over vehicular access rights.

It is true that, during the passage of the original Bill and subsequently, many have questioned the necessity of, and the rationale behind, such regulations. The Government have persistently stated that the regulations are designed to protect home owners who use common land to access their properties. They must be aware, however, that those who are property rich, but cash poor will struggle to pay an unexpected and sometimes considerable bill.

For years, some property owners have been left vulnerable to a loophole in the law and may have to face swingeing costs to buy what they thought that they had—the right of access to their homes. The courts have asserted that landowners are within their rights to charge home owners for vehicular access, but they have put no price on the value of that access. In extreme cases, that has resulted in requests for more than 10 per cent. of the value of the property. It is right that the Government propose to remove that loophole and ensure that compensation is limited to between 0.25 per cent. and 2 per cent. of the value.

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Despite the fact that several people have responded negatively to the consultation paper, we must accept that DEFRA has had to strike a balance between making the regulations as fair as possible between the rights of the landowner and the needs of the home owner. It is generally agreed that the regulations are in line with the consultation paper and it is clear that the law needs to be changed. However, the Country Land and Business Association remains concerned about the lack of provision to recover reasonable costs incurred by landowners. In a letter to me dated 13 June 2001, the association said:

    ''On many occasions, the compensation under the regulations will not cover such costs (in parts of the country, property values could be as little as £60000, with compensation payable of only £300). Necessary and reasonable costs could easily exceed the compensation (there is a need to provide evidence of title which even for registered land involves costs, but for unregistered land deducing title through a chain of past transfers of ownership is expensive).''

Sir Paul Beresford: I am interested in the point that my hon. Friend is making. When the association wrote to him, did it put the other view that there are some areas in which there is a small amount of land, but where the properties of the owners who have to use the land to gain access are extremely expensive, as a result of which the mark-up price of 2 per cent. is extreme?

Mr. Sayeed: In the letter to which I referred, the association did not make that point.

Alun Michael: The CLA has sent that letter to several hon. Members, and it made an informative contribution to our proceedings. The CLA was consulted. Its views were taken into account as part of the process that the hon. Gentleman rightly acknowledged required care to ensure that the right balance between the two extremes was achieved.

Mr. Sayeed: I understand that that is the crux of the matter. One organisation says that greater compensation is needed and others say that the compensation is far too high.

I shall finish reading the letter for the sake of completeness. It says:

    ''This situation, as well as being inherently unfair, would likely be in breach of Article 1 to Protocol 1 of the European Convention on Human Rights . . . Further, there are precedents for an owner to recoup his reasonable costs from the party gaining a right over his property (for example see the Leasehold Reform Act 1967).''

That paragraph raises a valid point, and I trust that the Minister will deal with it during his wind up.

Mr. David Rendel (Newbury): I received that letter too, and I was worried when I first read it. The point that some costs may be greater than the amount of compensation payable seems fair, at least on first reading. As the costs are mainly due to the imposition of the regulations if the owner goes through the full process, does the hon. Gentleman—or the Minister—think that there is a route out for CLA members? If the members grant access quickly and simply without requiring the demands of the regulations, the process would be much quicker. They might receive a smaller compensation payment, but it would nevertheless cover their costs.

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