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Baroness Sharp of Guildford moved, as an amendment to Amendment No. 196, Amendment No. 196A:


The noble Baroness said: My Lords, in moving Amendment No. 196A I speak also to Amendments Nos. 196B, C, D, E, F, G and J which stand in my name. They all deal with the complex and vexed issue of vehicular rights of way over common land. My interest in this subject stems from the situation in Surrey. Surrey County Council felt obliged by the provisions of the Local Government Act 1972 to seek best value for money in those cases where they held the right to grant easements over common land. Although it set a limit of 4 per cent on the value of the property for these easements, in some cases this involved a payment of £10,000 or even £20,000. That is not difficult for some but difficult for others, particularly elderly people who have lived in fairly modest homes which have been caught up in the property boom and who have little in the way of income or savings except what is tied up in their homes.

Other public landlords--here I cite Guildford and Waverley borough councils in the county of Surrey--felt no such obligation and were in the meantime granting easements at the cost only of the legal fees involved. The result was a chaotic situation with property and commons owners both uncertain of

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rights and obligations and with properties which did not have explicit easements or rights of way blighted by uncertainty. While such uncertainty persists it is impossible to obtain a mortgage which effectively blocks sales.

As the Minister indicated, we had some discussion on this matter at Second Reading and in Committee. We are extremely grateful to the Minister for bringing forward the amendment today. I record my thanks to the Minister and to his officials for the constructive way in which they put forward the original proposals and dealt with the consultation on them. They have taken into account many of the points made not only by myself and others in the Chamber but also by people outside who have participated actively in the consultation process and who are extremely grateful for the result.

Amendment No. 196 is the outcome of the process. The amendment and the regulations it proposes meet many of the issues raised. It lays down the right of an owner of such a property to be granted an easement and the conditions under which that easement may be granted, including specifying the maximum sum that may be charged. The regulations are, of course, crucial, but they are still subject to consultation and for that reason there remains some degree of flexibility.

The amendments to which my name is attached cover three distinct topics. Amendments Nos. 196A and 196C insert the word "land" before "premises". The reason for this is to ensure that the right to the grant of easements shall extend to agricultural land as well as dwelling houses and other properties. My noble friend Lord Phillips tells me that in legal parlance "premises" does indeed include land without buildings on it as well as land with buildings on it. However, I should be glad to have the reassurance from the Minister that this is the interpretation placed on these words in the amendment.

Amendments Nos. 196B, D and E all stand in my name and that of the noble Earl, Lord Selborne. I shall leave it to the noble Earl to speak to those amendments. I say merely that we on these Benches support him wholeheartedly on all three of the issues raised: the ceiling set for the value of easements shall be 2 per cent of the value of the property; the ability to defer such payment until the property is sold; and the need to have an explicit assurance that the regulations will be laid within a fairly short space of time so that the uncertainties which have dogged so many caught up in this issue will finally be terminated.

Amendments Nos. 196E, F and G also stand in my name. I wish to take a little time to explain the amendments. They relate not to property owners seeking to buy or sell easements for a lump sum, but to the situation where the owner of the commons is a charitable trust and where that trust has traditionally granted easement in return for an annual payment which is used to fund the maintenance of roads, paths and other general improvements to the amenities of the common land. There are a number of such trusts in existence; indeed, the National Trust is an example.

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But whereas the status of the National Trust is explicitly recognised in paragraph 11 of the draft regulations that have been circulated, this is not the case with other charitable trusts.

One such trust is the Totteridge Manor Association, formed in 1955 as a registered charity with the objectives of managing and maintaining the rural amenities of some 52 acres of common land in Totteridge, a mixed residential and rural area in the north of London. At present the association charges an annual sum to those requiring rights of way for vehicles across its land. It fears that the Government's intention in the amendment--to allow property owners to buy such easements for a fixed capital sum--will have the perverse and unintended effect of preventing the association and other trusts of its kind being able to continue to levy annual payments and thus to fulfil their obligations to maintain rural amenities and manage the areas of common land. The association is worried that under the terms of the amendment it will be obliged to sell off easements for lump sums which will not only deprive it of its annual income but also make it difficult for it to fulfil the responsibilities of stewardship incumbent on it under the terms of the charitable trust.

Amendment No. 196F seeks to alleviate the situation by, first, allowing common land owners with charitable trust status to continue to exist without the objects of the charity being compromised or the amenity of the common land being jeopardised; secondly, ensuring that rights granted as a result of the changes are the same as if they had been acquired by prescription; and, thirdly, ensuring that such charitable trusts are not prevented from asking for reasonable periodical payments for the maintenance and upkeep of the common lands. Just as the position of the National Trust is recognised, we ask that the position of these other charitable trusts should also be recognised in the regulations. That is the purpose of the amendments. I beg to move.

7.15 p.m.

The Earl of Selborne: My Lords, I speak to the amendments in the group which stand in my name. Like the noble Baroness, Lady Sharp, I am also grateful to the Minister for his amendment which addresses the issue which was identified and discussed at some length in Committee. The amendments that we propose to Amendment No. 196 constitute fine tuning. I accept that in the short time since the Committee stage much progress has been made. I echo the words of the noble Baroness, Lady Sharp, in saying how helpful the officials have been in discussing what I think everyone recognises is an astonishingly arcane area of law; that is, access over common land. We are going back to 1906 and trying to resolve complicated issues.

To demonstrate how complicated the matter is, Amendment No. 196AA, which stands in my name, is a gem of a complication. It seeks to address a problem which would arise under subsection (1)(b) of the Government's proposed new clause in Amendment No. 196 if a right of access arises from a presumption

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of modern lost grant. I suspect that some noble Lords do not immediately recall what the presumption of modern lost grant is all about. I refer them to the 16th edition of Gale on easements which I have to hand. The provision is a legal title derived from the presumption of a right of way.

Lord Goodhart: My Lords, I am most grateful to the noble Earl for giving way. I believe that it is known as lost modern grant, not modern lost grant.

The Earl of Selborne: My Lords, all I can do is refer the noble Lord to Gale on easements which talks of a presumption of modern lost grant. I shall show him the document later, although I defer in all matters legal to the noble Lord, Lord Goodhart. Whatever it is called, let us assume that this situation arises where a right of way through virtue of long use has lapsed or no longer exists for some reason. That could happen if a lease were granted and it brought the property in question into the same management as the access land. Clearly there would then be no need for a right of way. The lease could end and the period where the access was required would not have achieved the prescriptive period of 20 years. I believe that subsection (1)(b) of the Government's amendment does not address the issue. I suggest that Amendment No. 196AA addresses it.

Amendments Nos. 196B, 196D and 196E deal with the possibility that the regulations, when finally drafted--I accept that much further consultation is needed--allow for the deferral of payments and limit the amount to be paid to 2 per cent of the value of the property. I share with the Minister the belief that a payment is perfectly appropriate. The access owner will face charges. The issue is the balance of the interests of the access owner and those of the property owner. I recognise that some individuals and their predecessors who have owned and lived in those houses since 1926 when the anomaly in the law arose will find it harsh, particularly if they are retired, to face a bill amounting to 3 per cent of the value of the property. That is the figure now suggested in the summary of the draft regulations.

Payment is a total windfall for the access owner. Were it not for the law which came into force on 1st January 1926 those prescriptive rights would long since have come into play. It is only because the access owner has either never known of his or her interests or has never bothered to enforce them that the situation arises today. After 50 years--it is longer in many cases--he is now entitled to present a bill of 3 per cent at today's prices.

Bearing that in mind and accepting from the Minister that payment is due to the access owner--however fortunate one may think the access owner to be--in seeking to get the right balance it is not unreasonable to hit on a figure of 2 per cent. That is the figure I commend to the House.

From these Benches we have from time to time argued that there are human rights which have to be taken into account. I recognise that that is precisely the reason that payments have to be made to the access

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owner. I still think that 1 or 2 per cent is appropriate. The figure of 1 per cent is proposed in the draft regulations for those properties built prior to December 1930. I have no quarrel with that. I think that that is perfectly appropriate.

Amendment No. 196J refers to the need to ensure that the regulations are tabled within four months. It would be sensible to have in the Bill a date at which these regulations should come into effect. It would be most unfortunate if the period were protracted unnecessarily. However, I recognise that more discussion is needed. A period of four months might not be appropriate.

Amendment No. 196FA deals with properties whose construction was completed prior to 1st January 1906. The reason for the date of 1906 is that it is 20 years before the Law of Property Act 1925 came into force in January 1926. I am sure that the Minister will tell me that I need not worry about the properties relating to 1906 or earlier because they have prescriptive rights: after all, they were using their access for 20 years up to 1926; there is no problem; the government amendment does not address the issue because it does not need to address it. I am not sure that that is so. If one goes back to the maps of 1906 or thereabouts one finds evidence that there was a house; there must have been some route to it but it does not follow that it was always the same route. It probably was not when one considers how the tracks on common land have moved. After this long period no one can say from first-hand evidence what happened in and before 1906.

In seeking to establish the balance of interests between the access owner and the property owner, when talking about a house built in or before 1906 there can be no argument but that the house had access for vehicles--they may have been wagons--and a presumption that there was a prescriptive right. The access owner has to produce some evidence either of restricting access, of having made a licence or at least of having registered an interest. In other words, the presumption is moved to the access owner. If between 1906 and 1993 he never got round to doing that, a landowner cannot complain to the Court of Human Rights that he has had his rights greatly limited. Any other landowner would be only too delighted to know that by this astonishing aberration of the law he has an ability to charge 1 per cent, 2 per cent as I suggest or 3 per cent as the Government may suggest on these properties. But for 1906--surely not.

I hope that the Minister will look favourably on the amendments to Amendment No. 196 and recognise that they are tabled in the spirit of helpfulness, fine tuning the excellent Amendment No. 196.


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