Text from Hansard on November 3rd. Debate on Newtown Common
Sir George Young (North–West Hampshire): I welcome the opportunity to raise the issue of the ownership of Newtown common. Until recently, the subject would not have generated much public interest, but, because of the activities of a property dealer trying to get people to part with substantial sums, the ownership of the common and the obscure and outdated legislation that surrounds it deserve the House's attention. No one should have to go through what my constituents are going through.
I welcome the Minister to the Dispatch Box. He brings with him a well-earned reputation for fighting for justice, often against long legal odds.
The debate is about a battle between 180 constituents who live on, or around Newtown common, and Bakewell Management. Just over 100 houses are involved, which are located on, or near the common. They are owned by owner-occupiers--not all of whom are well off--who bought the houses having undertaken all the usual searches through solicitors. Not one search revealed any liability of the type that is now claimed. Since time immemorial, they have driven the short distances to and from their homes to the main road.
One typical couple bought their house in 1971 and have been driving to and from it ever since. They paid off the mortgage in 1991. The husband is 70 years old. His wife is 61. Both have retired. The value of the house is now estimated to be £180,000. They have little capital.
Mr. Merton Vaslet, who is aged 80, has lived in his house and used the Newtown common roads for 36 years. He is quoted as saying:
"I have crossed Newtown Common quite happily until now. Then I'm told I don't have access to my own home".
Dr. Stevenson, another home owner who has used the common roads for 28 years, said that residents were prepared to go to the High Court to block the claim. Others have lived in the area even longer; one lady moved there more than 60 years ago. At no stage had any of them been invited to pay any money for accessing their homes--until a few weeks ago.
Let me introduce the second party--Mr. Michael Farrow and his company, Bakewell Management. In 1986, a company named Historic Records Agency, whose managing director is Mr. Farrow, bought the title "Lord of the Manor of Newtown" from the Earl of Carnarvon for £4,200. Mr. Farrow proceeded to remove a reference to wastes and commons in the conveyance and sold the title for £12,000. Claiming ownership of Newtown common, he transferred it from the Historic Records Agency to himself and then to his wife, who in turn transferred it to a company named Bakewell Management. That company now claims ownership of the common and has applied to the Land Registry to validate that.
Mr. Farrow tried to register the common with the Land Registry in 1988, objections were made in 1990 and the application was cancelled in 1995. However, in July 1997, Mr. Farrow reapplied. On 15 April 1999, an advertisement was written by the Land Registry offering
14 days in which to lodge complaints. Should Mr. Farrow be successful in his application, he will claim to have the authority to start to charge people for something that they cannot avoid doing, but have never had to pay for before: getting to their own front door.
Mr. Farrow wishes to charge residents who use the common to get home a fee for the privilege. He is demanding 6 per cent. of the value of their home. What is even worse is that his chartered surveyors, a company named Deal Varney, which has since resigned from the case, had given the residents an ultimatum. I quote from a letter to residents:
"we are instructed, under the terms of the amnesty, the owners will accept 6 per cent. of the open market value providing agreement is reached before the 15th November 1999".
Bearing in mind the fact that Mr. Farrow is yet to be registered as the owner, residents have to decide between paying him 6 per cent. of the value of their homes by 15 November, and standing their ground, risking the fee rising to 10 per cent. or more--a figure was mentioned in the same letter. Many of the residents cannot afford such a sum and will be forced to sell and move elsewhere. The practice might have been appropriate from the feudal sheriff of Nottingham. There is no place for it in 1999.
I am delighted that the residents have joined together in an association that is led by Tim Kelleher. I am grateful to Doug Ellis, to his wife Liz, who is the clerk of the parish council, and to councillor John Clegg, who represents Newtown Common on Basingstoke and Deane district council, for all their support in mobilising a campaign to oppose Mr. Farrow.
What is the legislative foundation of Bakewell Management's claim? Is it valid? If it is, should the law be changed? Section 193 (1) of the Law of Property Act 1925 states that, if a deed of public access is signed by the owner of the common, that allows the common to be publicly used for "air and exercise". The signing of the deed automatically triggers a ban on vehicles passing over the common, unless the landowner expressly gives permission.
Under the Road Traffic Act 1930, it is an offence to drive more than a short way off a highway on to a common without lawful authority. However, in a local byelaw, there is a condition under which that ban must not apply. It clearly states that the ban is not intended to stop "the use by any vehicle on any road on the Common for the purpose of travelling to or from any property to which the Common affords the sole means of vehicular access".
Mr. Farrow seeks to exploit a loophole in the law, by virtue of the fact that "a by-law cannot be made or legally interpreted in such a way as to overrule a public statute".
That is an obvious example of the contradictions that occur in the confusing field of law, but I am surprised that such a blatant statement allowing vehicles to be driven over commons to reach properties can apparently be bypassed and ignored.
As I speak, there is still no confirmed landowner and the evidence is conflicting. The residents who use, and always have used, the common to reach their homes bought their houses having fully researched the position. Now, it is as if another £25,000 were being added retrospectively to the price.
Mr. Farrow, who invested £4,200, sold the title of "Lord of the Manor of Newtown" for £12,000. I have no quarrel with that. If someone wants to be Lord of the Manor of Newtown, that is fine with me and no harm is done to anyone else. However, Mr. Farrow now wants about £500,000 from my constituents. When I took up their case, as any other hon. Member would have done, he wrote to me:
"Depending on the circumstances and how much loss the company suffers because those who were going to contract with the company did not do so as a result of your statements, they could give rise to a legal action against you".
I can look after myself, but not all my constituents can. I cannot understand anyone going to the lengths that I have described to enrich themselves at the expense of my constituents.
I turn to the role of the Government. These are my questions to the Minister. First, as a Member of Parliament, if not as a Minister, can he understand the anger and fear of those of my constituents who find themselves in the predicament that I have outlined?
Secondly, does he agree that, in this day and age, people should not be held to ransom in that way, when they have done all the searches and used all the right professionals?
Thirdly, where has the Land Registry got to in processing the application?
Fourthly, if the Land Registry has no option, does he agree that the law should be changed, so that residents in Newtown will not be disadvantaged if they do not succumb to Mr. Farrow's demands, but will continue to enjoy the rights that everyone thought they enjoyed?
Fifthly, what legislative changes would be necessary? The 1955 royal commission on commons recommended the establishment of statutory registers for all common land, including a record of the rights exercisable over it and its ownership. It was proposed that there should be new statutory management schemes for, and a universal right of public access to, common land. In the event, it was decided to implement the recommendations in two stages, the first being the enactment of the Commons Registration Act 1965, with its scheme of statutory registers. The second stage, dealing with statutory management schemes and the principle of a universal right of public access to common land, was never implemented. It is widely recognised that the 1965 Act was not entirely adequate to give effect to its original purposes. It has been frequently criticised by the judiciary.
It is therefore clear that fresh legislation is necessary to deal with not only the matters originally envisaged, but deficiencies, anomalies and injustices that have been highlighted since the 1965 Act came into force--not just those in Newtown Common, but those in other parts of the country, including Surrey Heath; I see my hon. Friend the Member for Surrey Heath (Mr. Hawkins) in his place.
The legislation should provide that when there has been no charge or restriction by the owner of a common for vehicular access across a common, and when--in the 60 years from 1925 to 1985, or for a period of at least 20 years, or since the house was built--the access has formed the vehicular access to a private house, there is presumed to be a grant of vehicular access from the owner of the common to the owner of a private house accessed across it. It should provide also that neither the owner of the common nor his successors in title may in future charge for vehicular or other access or put restrictions on the access across the common.
I hope that I have carried the Minister with me so far, and that, if I have, the Government will either introduce the changes themselves, by amending a suitable Government Bill--perhaps the right to roam legislation, if it is introduced--or give a smooth passage to a suitable private Member's Bill seeking the same objective.
I believe that I have outlined a real injustice, which I ask the Minister to put right.
The Parliamentary Under–Secretary of State for the Environment, Transport and the Regions (Mr. Chris Mullin): I am grateful to the right hon. Member for North–West Hampshire (Sir G. Young) for raising this issue and giving me the opportunity to present the Government's response, and also for his kind opening remarks.
The situation that the right hon. Gentleman has described seems, on the face of it, to be outrageous, and I can well understand the feeling of injustice that his constituents feel. Were our roles reversed, I might well have made a similar speech.
Today, I received a letter from Mr. Farrow of Bakewell Management, saying that the proposed charges will be lower than those that have been reported, although he does not go any further than that. He also points out that other organisations such as Surrey county council and the National Trust charge for access across common land. I should add to that that the Government have advised local councils that they have a duty to their tax payers to charge reasonable charges for access across common land. The emphasis, of course, is on the word "reasonable".
Mr. Farrow also said that Bakewell Management proposes eventually to form a trust and to endow it with a lump sum, and that the trust will be controlled by local people. I am sure that the right hon. Member for North–West Hampshire notes that with interest.
Sir George Young: It is a gift of dubious benefit. Bakewell proposes stripping out the common's asset value and--so that Bakewell is not encumbered with any obligations of maintaining the common--parking it in a trust. One has to consider the offer with some caution.
Mr. Mullin: I share the right hon. Gentleman's view on that point. I should also say that, although Bakewell may well have the letter of the law on its side, I wonder whether it is able to defend its position morally, as well as legally.
The matter stems from an application for first registration of Newtown common that has been made by a company called Bakewell Management Ltd. It is essentially a matter of private ownership of land, and the applicant is therefore entitled to keep certain aspects of its application private. It would be inappropriate for me to discuss the details of the particular case
As the right hon. Gentleman will know, all applications for registration of land are dealt with by the Land Registry, the main statutory function of which is to keep a register of title to freehold and leasehold land throughout England and Wales. The head of the Land Registry is the chief land registrar, who is appointed by the Lord Chancellor under the Land Registration Act 1925--which gives the chief land registrar responsibility for conducting the whole business of registration. As the right hon. Gentleman will understand, it is not a matter in which a Minister could intervene.
There are, however, some general issues that apply to every application for first registration. The procedures to be followed are set out in the Land Registration Act 1925 and the land registration rules 1925. Whenever an applicant shows that he is the owner of a property, the chief land registrar is bound to register that property showing the applicant as the owner--he does not have a discretion.
The most recent application for first registration in this case was lodged in July 1997. In March and April 1999, advertisements were placed in the Newbury Weekly News and the Basingstoke Gazette giving brief details of the application and allowing 14 days for any objections to be lodged. The advertisements provoked a number of objections, the majority about rights of way over the common. As the right hon. Gentleman said, the current position on the application is that it is still with the Land Registry for determination.
A specific criticism has been made about the time limits imposed by the Land Registry for lodging objections or evidence in support. Generally, a reasonable but fairly short time will be allowed initially for people to lodge objections. The Land Registry recognises that most objectors will not have all their evidence immediately to hand and may well also wish to seek legal advice. If so, the Land Registry will generally be sympathetic if it is asked for more time, and legitimate objections will be accepted for consideration at any stage of the application.
Many of the residents seem to be frustrated that they are not allowed to object solely on the grounds that they genuinely believe that the applicant does not own the common. They can make a formal challenge to the application only if they can show that they have a competing claim. That does not mean that the Land Registry will ignore any relevant information that may have been provided to it by a third party. The Land Registry may well choose to take up such information with the applicant, but it will be a matter solely between the Land Registry and the applicant.
I hope that that satisfactorily deals with the registration issues.
As I am sure the right hon. Gentleman has discovered in his investigations, the title "common land" is something of a misnomer. The term "common" refers to rights held in common by certain people to use the products of the soil of the common--for example, for grazing or cutting turf. Common land is, therefore, not land that is available to everyone, but generally owned by someone, and that person enjoys rights of ownership, although those rights may not be precisely the same as those enjoyed over land that is not common. The majority of common land is in private ownership.
As the right hon. Gentleman has discovered, it has been an offence--under either the Law of Property Act 1925 and/or subsequent Road Traffic Acts--to drive over common land without the owner's permission. He also mentioned a local byelaw that seemed to suggest that a ban should not apply on Newtown common. I sympathise with his view that that is an apparent contradiction in a confusing sphere of law. However, I am sure that he will appreciate that, in all spheres of law, it would be far more confusing if primary legislation could be overridden by a local byelaw.
The right hon. Gentleman suggested that something should be done to rectify what he suggests is antiquated law--particularly by a Government whom he knows to be committed to modernisation. I agree that, in some ways, common land law is ripe for review, and I shall return to that in a moment. However, the issue in this case is not primarily about common land law at all, but more about landowners' rights generally. Specifically, the issue is whether it is appropriate and lawful for landowners to have the ability to make an unlimited charge for activities that take place on land of which they are recognised as the legal owner. In that respect, common land is essentially no different from other land.
According to the law, landowners have the ability to charge for the right of vehicular access over their land, and that ability has been tested in the courts in cases very similar to the current one. Although I fully appreciate why the residents of Newtown common, and other people, consider it unacceptable that someone should be able to acquire land and then make significant changes to their use of it unless a large fee is paid, one of the purposes of the legislation was, and continues to be, to protect land from the intrusive use of vehicles.
In certain, limited circumstances, prescriptive rights may be acquired through long use. For example, generally, it is possible to obtain a right of way by 20 years' use, so long as the use is neither by force, nor secretly, nor with permission. However, the courts have ruled that it is not possible to obtain a right of way by long use when the use is a criminal offence. From the information available, it seems unlikely that the residents of Newtown common have any such prescriptive rights because, as I have already mentioned, the provisions of the 1925 Act and subsequent Road Traffic Acts have made it an offence to drive across common land. Undoubtedly, however, the residents have sought specific legal advice on their rights.
The right hon. Gentleman asked about the possibility of legislative changes. He has mentioned the proposed right to roam legislation. That is a nice try, but I am afraid that it does not apply in these circumstances, as our proposals for access to open countryside, including registered common land, are about access on foot only. However, we shall soon be considering whether there should be any changes in the legislation that affects common land. If so, there would be public consultation on what changes would be desirable. I cannot promise that the Government will feel it necessary to act on vehicular access over common land, because, as I have said, there are wider issues to consider. Extinguishing landowners' rights without compensation would no doubt have implications under the Human Rights Act 1998. However, there may well be a case for placing some reasonable limit on the charge that the owner is entitled to make. I must again emphasise that I can make no commitment to legislation. I should also point out that, to be of any assistance to the residents of Newtown common, such legislation might have to include a retrospective element. The right hon. Gentleman has served in government for much longer than I have, so he will know that all Governments are reluctant to make legislation applicable retrospectively.
I am sorry that I cannot offer the right hon. Gentleman and his constituents the reassurance that they seek. I understand their anxiety and the uncertainty that the unresolved situation creates for the residents, particularly for those who lack the resources to meet the possible access charges. The situation causes me some disquiet, and I have looked carefully to see what comfort I can offer.
I shall watch with interest the level of charges that Bakewell imposes and compare them with the reasonable charges for similar access made by county councils and the National Trust. I hope that whatever charges are imposed can be defended morally as well as legally.
Sir George Young: I know that the Minister is being as helpful as he can. Having made inquiries on what county councils charge, what does he regard as a reasonable charge? Would legislation to deal with the issue necessarily be retrospective? If the residents of Newtown common decide not to pay the 6 per cent.--or whatever the fee is--but to sit tight, and if legislation is introduced in due course that gives people rights on common land, there will be no need for the retrospective element that the Minister deplores.
Mr. Mullin: I cannot say off the top of my head what I regard as a reasonable charge. There are other examples. We have referred to a couple of them. The right hon. Gentleman can look at them and see for himself what is considered elsewhere to be a reasonable charge. I shall consider his points about getting round the retrospection, but I cannot give any commitment today.
As matters stand, I regret that I cannot see a way in which the Government could assist the right hon. Gentleman's constituents, but I am willing to meet him to discuss the matter further if he thinks that that would be useful.
Sir George Young: The Minister said that the behaviour of Bakewell, although legal, was difficult to defend morally. If a private Member's Bill got round the problem, would he be minded to support it?
Mr. Mullin: The right hon. Gentleman has occupied various posts in the Department that I now have the honour to represent. Because he is so much more experienced than I am, he will realise that he is pushing his luck by asking me to say on the spot that I shall support such legislation. The Government are clear on that. We cannot give a commitment on legislation. However, I assure him that we shall look carefully at any sensible proposals that anyone, particularly the right hon. Gentleman, comes up with.
It being before Two o'clock, the motion for the Adjournment of the House lapsed, without Question put.
Sitting suspended, pursuant to Standing Order No. 10 (Wednesday sittings), till half-past Two o'clock.