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

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Mr. Sayeed: The hon. Gentleman makes a perfectly valid point, which I tried to make earlier. There is no need for a person to negotiate rights through a third party if they can be decided directly.

This Government are not responsible for the existence of a loophole in the law, although they would have been at fault had they done nothing. Balancing the legitimate rights of those who own land with those who have hitherto enjoyed free access to it was always going to require the judgment of Solomon. Lacking that, the Government have come up with a solution that will fully satisfy no one, but it is probably the best they can do. The Conservative party will not oppose the regulations.

4.57 pm

Mr. Rendel: It is a pleasure to serve under your chairmanship, Mr. Amess, for the first time ever. As far as I can tell, you have not put a foot wrong so far; let us hope that the Committee goes on like that.

I, too, welcome the regulations, which are long overdue. Indeed, some people have delayed selling their houses for some time because they have been waiting for the regulations to be introduced. They could not sell until they knew that the matter was sorted out in case they were told that they would have greatly to reduce the price of their house.

The regulations are so long overdue that the matter was discussed during consideration of the Countryside and Rights of Way Bill. I do not wish to diminish the credit due to the right hon. Member for North-West Hampshire. I dare not annoy him because he is my neighbour and we must keep on good terms. However, the matter was raised a long time before that as a result of the situation with regard to other commons. I and other hon. Members wrote to the relevant Minister some time ago to raise points about commons other than Newton common.

It is slightly ironic, given the support of the right hon. Member for North-West Hampshire and the hon. Member for Mid-Bedfordshire (Mr. Sayeed) for the regulations, that I first became aware of the issue due to Bucklebury common. At the time, it was owned by a Conservative councillor who attempted to charge 10 per cent. of the land's value—up to £50,000 in some cases—for access to small parts of the common. Although the councillor owned the common, he did not manage it; the local council managed it and also bore the costs. Nevertheless, the councillor tried to charge those who owned houses on his common tens of thousands of pounds. So, although it is slightly ironic, it is good news that the Conservative party is in favour of the regulations.

When the consultation paper was published with the original draft regulations, I wrote back to the Ministry with my concerns. I said:

    ''I have one immediate comment to make which is that 4 per cent. of the value of the property''--

the sum then due to be charged for some of the properties—

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    ''to gain a right to such access in perpetuity still seems to me much too high. For example in my own area this could lead to a payment of tens of thousands of pounds. I suggest therefore that the maximum limit should not be more than 2 per cent., and preferably less.''

It is good news that the suggestion that I and many other people made has been met with a change to the regulations, which now set the maximum limit at 2 per cent.

Mr. Sayeed: Will the hon. Gentleman confirm that Claverdon parish council—which is controlled by the Liberal Democrats—sought to charge £30,000 per house for rights of access over common land?

Mr. Rendel: I am afraid that I have no knowledge of Claverdon parish council, although I would not dream of denying the truthfulness of the hon. Gentleman's comments.

I have one or two concerns with the latest regulations, and I hope the Minister will be able to put them to rest. Although we welcome the new regulations, and I shall certainly not oppose them, some matters may need greater clarification, such as when one must apply. Regulation 6(2) states that one must apply within 12 months of the regulation coming into effect. That was not in the original draft, which stated:

    ''Where the use of the way has ceased, the application must be served within 12 months of the date on which the Regulations come into force''.

The current regulation states:

    ''The application must be served within 12 months of the date on which these Regulations come into force or, if later, the date on which the relevant use of way has ceased.''

If people with no current clear right of access—or a landlord who is trying to prevent them from getting access—do not apply within 12 months, do they lose any rights under the regulations? If they do, it is a concern.

As the hon. Member for Mid-Bedfordshire said, pensioners on low incomes might have capital wealth—because they own a decent dwelling on a common—but no income. Those people might find it difficult to pay for a right of access and may prefer to wait until the property is sold and pay out of the proceeds. Some people may be ill or infirm and find it difficult to manage their affairs. They would have difficulty getting through such business within 12 months.

Some people may be unaware of any problem. They may think that they have access but never have used it—they may not have a car and reach their property on foot. They may not realise that they must apply within 12 months. They may not even realise that the land in question is a common and that they should not be using it. Equally, there is always the possibility that a landlord might try to pull a fast one and pretend that all is okay, and start playing up only after the event.

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For all those reasons, the regulation needs clarification. I hope that the Minister will be able to tell me that my interpretation of it is wrong. However, if it is in any way right, there is a problem, and it may be better to return to the original version.

It is a pity that the onus is on the householder, rather than the landlord. That is especially true for homes built before 1905. One would have thought that the Government could reasonably have interpreted a situation of prescriptive right and that they would not need to pay compensation. The onus of proving the opposite could then have been placed on landlords rather than householders.

The possibility landlords procrastinating also concerns me. A landlord may try to delay the process for 12 months to frustrate the householder into withdrawing the application. If the householder is so frustrated that he or she withdraws, any legal costs to that date would have to be paid by the applicant. Therefore, landlords could simply make the process difficult to try to frustrate the householder into giving up. Regulation 17 states that landlords' costs are to be met by the householder should the householder fail to continue with the application.

What if the exercise of the right of way has not been possible for quite a long time as a result of a landlord who has been rather aggressive and has prevented its use—although he should not have—for so long that no possibility exists of there ever having been a right of way, simply because of his actions?

My fifth query has already been discussed in the intervention that I made on the hon. Member for Mid-Bedfordshire. I hope that the Minister will be able to confirm my view that if there is a problem of that sort, the landlord should be able to get around it by making an agreement with the householder that the whole thing should go through quickly with little legal cost in return for a smaller compensation payment. That is the issue that the CLA raised. In that way, the CLA landlord, as we call him or her because it is the CLA that raised the problem, would find that his or her costs were completely covered by the compensation.

My final point was raised in a letter to me from a constituent who has a problem—well, I do not know whether it is a problem; that is a legal matter, but I hope that the Minister will confirm that it is not. The letter said:

    ''My concern is with clause 15 'Creation of Easement'. Is there a difference between a Statutory Easement and a Deed of Easement, which is normally a legal document signed and sealed by both parties, witnessed and drafted by a lawyer? Such a document forms part of the Title Deeds of the freehold, usually held secure by a Bank or Mortgage lender. Is the Landowner's compensation receipt''—

which he must be given under the regulations—

    ''adequate as a Deed of Easement document in this Access issue, or is the creation of a separate Easement document, as described, the responsibility and cost of one or both of the Parties? E.g. is such a document provided from the Landowners compensation payment, in addition to the receipt?''

I hope that the Minister can resolve that legal issue, because it is worrying my constituent.

I have listed my concerns. I hope that, if I carry on talking for a few minutes, the Minister will have enough time to get some advice. I hope that he can

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answer my concerns adequately and put at rest the minds of my constituents, who are a little worried about the remaining issues that arise from the regulations.

I repeat that, in general terms, I am delighted that the regulations are going ahead. They will be of great benefit to several of my constituents, and I hope that no one will vote against them.

5.7 pm

Sir Paul Beresford: I will not be able to vote against the regulations, as I am not a member of the Committee, but I should like to make a few points. There is an issue that is unusual for the country but particular to my area of it, where the economy is quite good and property values are exceptionally—sometimes quite outrageously—high. Several such areas are affected by the legislation. Although residents will be delighted that the loophole is being sorted out, they are not necessarily delighted with the financial effects, particularly if they are asset rich but their income is fairly basic, as is the case for some of the pensioners.

In one area, residents have got together to do something about their problem. The common land over which they drive—all 100 yd of it, if that—is owned by a lady who has passed the management of it to her son, who, as I understand it, although I have only heard one side of the story, sees a cash register at the end of the drive. Our difficulty is the market value of the common land, which has been estimated, using the sale of a similar piece of land nearby, at about £9,000.

Residents of properties in that area have been using the access for 78 years. Some of the properties—unfortunately, from the point of view of the owners—will fall into the 2 per cent. bracket. The value of those properties varies quite dramatically from relatively modest amounts to well over £1 million. One or two residents are in the much-maligned position of being asset-rich, as they own a property of that value, although their income is pretty marginal. The property is often their family home, built in the 1930s or 1940s.

Those residents have the prospect of paying more than £20,000. To put it bluntly, they cannot do that. They do not have the cash to pay and have no prospect of getting it. The compensation paid to the owner of the property—a strip of land worth £9,000—may be about £500,000. Hence the comment about the cash register. I hope that the Minister and the Committee will be aware that a positive decision today will, from the residents' point of view, be a gross injustice that will bring genuine hardship on several of the owners, mainly because of the values of their properties. Although I understand the CLA's point, it has taken one end of the market and has not considered the other.

We are effectively placing a toll tax on residents without the justification of the landlord having any maintenance responsibility. In the past, the landlord has done nothing and contributed nothing towards the maintenance of the area or the access road that the residents use. The residents have maintained the road

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for 50 years, and even though they have approached the landlord, no contribution has been made. To make matters worse from their point of view, they effectively regard the proposal as a retrospective tax on circumstances that have existed for some 78 years, in some cases. They are now being hit severely, or, to use an antipodean-type phrase, clobbered by a sum that in many cases will total up to £20,000, and possibly more.

The result is iniquitous, because no ceiling has been set. I understand landowners' concerns, as expressed through the CLA, about the lower level. Equally, I hope that the Committee will understand the prospect of exactly the opposite happening and that such people will be in a dire position. I do not anticipate a discussion about a benevolent lower level. That may have been possible a few years ago, but it does not seem possible now.

 
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