Sir George welcomes debate in House of Lords on Newtown Common
12 Oct 2000
Sir George said he was pleased at the way the debate on Lord Selborne's amendment had gone in the House of Lords. "The Government now want to tackle the problem; have come up with some proposals; and have indicated flexibility in their response. This is good news for my constituents at Newtown Common, who have been confronted out of the blue with large bills for the right to drive to and from their homes - a right many have enjoyed for decades."

This is the debate that took place.


The Earl of Selborne moved Amendment No. 442:


Before Clause 62, insert the following new clause--

EASEMENTS OVER COMMON LAND ETC

(" .--(1) Where a way across a common or village green has been used as of right
prior to 3rd November 1979 as a vehicular access to a dwelling-house, the
dwelling-house shall be deemed, unless otherwise entitled, to have the benefit of an
easement for the passage of mechanically propelled and other vehicles along the
way.
(2) Subject to subsections (3) and (4), upon the first occurrence of a relevant event in
respect of the dwelling-house, any person who immediately before that event held
the benefit of a right created by subsection (1) shall pay a reasonable proportion of
the value of the dwelling-house to the owner of the common.
(3) No sum shall be payable under subsection (2) if the use of the way to access the
dwelling-house (or a dwelling-house in a similar position) began before 1st December
1930.
(4) Subject to subsection (3), the proportion payable under subsection (2) shall not
be greater than 2.5 per cent.
(5) Where an easement is granted by express agreement to create a vehicular right of
way across a common or village green to a dwelling-house, the owner of the
dwelling-house shall not be liable to pay a sum greater than 5 per cent. of the value of
the dwelling-house at the date of the agreement for a way from his property to the
nearest convenient highway.
(6) Any dispute as to any sum payable under this section shall be referred by
agreement to arbitration or referred to, and determined by, the Lands Tribunal.
(7) If no relevant event has occurred the sum referred to in subsection (2) shall be
payable 30 years after the coming into force of this section.
(8) The owner of a dwelling-house may at any time prior to the occurrence of a
relevant event make a payment as if it is a payment under subsection (2).
(9) In this section--
"owner", in relation to any land, means any person, other than a mortgagee not in
possession, who, whether in his own right or as trustee for another person, is entitled
to receive the rack rent of the land, or, where the land is not let at a rack rent, would
be so entitled if it were so let;
"relevant event", means--
(a) transfer of the freehold ownership,
(b) creation of a lease for a period greater than 21 years,
(c) if the owner is a company, any change in the ownership of the company.").

The noble Earl said: This amendment seeks to address the problems which
have arisen over charges for vehicular access over common land. It is an
issue which has caused great consternation to a large number of
householders who have driven across commons without hindrance for many
years. Some will have driven across them for 70 years or more and have
only recently discovered that in all that time they had no legal right to do so.
They are now in some, but not all, cases facing unexpected and high
charges for access from the common owner.

The problem stems from the Law of Property Act 1925 and from
subsequent road traffic Acts. The Law of Property Act 1925 provided for
owners of commons to execute a deed of public access to their common

11 Oct 2000 : Column 429

land for the public to walk on it. In return, the landowner was allowed to
restrict vehicles and consequently, of course, the landowner had the right to
charge for access. The position was aggravated in one sense by the road
traffic Acts from 1930 onwards which made it a criminal offence to drive
over common land without the owner's permission.

I am sure that the legislation was not intended to disrupt existing access
arrangements. It is clear that the purpose was to prevent people driving
across commons--a worthy objective. Many owners behaved thoroughly
responsibly--I refer to the National Trust which has already been mentioned
in another context--and did precisely what should have been done in 1925
and 1930 and granted rights, licences or entitlements of one kind or another
to allow people (presumably for a one-off payment) to have access to their
households. That was a perfectly reasonable way to behave. However, in a
number of cases the owners of the commons simply said, "We know you
drive across the commons. We shall not disrupt the arrangements. Your
house may have been there for several hundred years, or at least 50 years,
and we shall not disrupt the arrangements", and they did not. The position is
further complicated by the fact that no one knows who owns a large
number of commons anyway. Therefore if a householder tried to get an
entitlement to access to his house in those circumstances he would not get
far as there is no one to grant that entitlement.

As I say, the position remained unexceptional for the householders until the
1990s. Partly as a result of the 1993 Court of Appeal case, Hanning v. Top
Deck Travel Ltd, it became evident that people who thought that they had a
prescriptive right of access to their houses because of long use of such
access did not have that right at all for the simple reason that as soon as it
became a criminal offence to drive on the common land one could not
acquire a prescriptive right as a result of a criminal act. Suddenly people
faced charges from owners who woke up to the fact that they had a nice
earner on their hands. People who for 70 years or more had failed to
charge people for access to their houses realised that they now could and
that they could send in the bill 70 years later and there was not a thing the
owner of the household could do about it. They were trapped. They found
that the prescriptive rights which their professional advisers had told them of
did not exist. Presumably the houses had changed hands and the issue was
never raised by vendors' solicitors, purchasers' solicitors, mortgage
providers or valuers. These people were no doubt remiss. They did not
pick up on the point that the prescriptive rights could not exist as a result of
road traffic Acts which made such access a criminal offence. As noble
Lords will realise, it is a great shock for a number of these householders to
find that they are suddenly presented with a bill after 70 years or more.
Sometimes the bill for the access roads amounts to up to 10 per cent of the
current value of the property.

I do not say that it is a widespread, universal habit; it is not. Only a
relatively small minority of owners engage in it. Many owners have acted,
and continue to act, in a way which acknowledges that when the law

11 Oct 2000 : Column 430

was changed to make it a criminal offence to drive on commons the
purpose was to stop vehicles driving over the commons but not to stop
people getting to their homes. That clarification of the law--if that is what it
is--was not regarded as a means suddenly to charge great sums of money.
But that is what happened in a number of cases. It is those cases which
have caused outrage in certain quarters.

In another place, Sir George Young initiated an adjournment debate on the
subject. The case drawn to his attention related to Newtown Common. The
owners of the common had never been identified until a recent court case
which established, I think to the surprise of the family who had sold the
lords of the manor rights, that the ownership of the common went with the
lord of the manor. That was complete news until the court determined that
to be the case. With the new owner came a complete change of policy.
Whereas the previous owners had acquiesced over access to the houses,
the new owner started sending letters to each of the houses whose owner
had to go over part of the commons to gain access to his house. The letter
stated that,


"under the terms of an amnesty the owners will accept 6 per cent of the open
market value of your property provided an agreement is reached before the
15th November 1999".

That figure and date have since been modified, but clearly that was no little
shock.

Surrey County Council is seeking considerable sums for access over
commons in its ownership as are a number of parish councils even though
they acquiesced, apparently quite happily, in allowing vehicular access for
so many years.

What seems particularly inequitable is that had these owners behaved in the
responsible way that other owners behaved and put access agreements on
a proper footing many years ago it would have been much easier to find
long-standing residents who could testify to the use of these tracks going
back to the early years of the century. Now it is impossible. After 70 years
it is no longer possible to establish one's prescriptive rights. It is no good
saying, "My house is 200 years old. Here is a track." One cannot prove that
the track has not changed.

Failure to send a bill for 70 years is an abuse of the owner's rights. Bills are
now being sent for 6 per cent or even 10 per cent to continue to have
access to a house. It will be ultimately for a land tribunal to determine
whether that is the right figure. But 5 per cent or 6 per cent may well stick in
some cases. The owner of the commons stands to gain a windfall from a
failure to present a bill 70 years ago.

I am sorry for that lengthy introduction but noble Lords will agree that it is
unusual to point out a failure of the law over some 70 years. My
amendment seeks to alleviate the financial burden that these householders
face so unexpectedly. It makes a differentiation in charge between those
who have enjoyed unfettered access for a long time and those who have
had access for a short time. It is an important principle. The amendment
limits the charge which can be imposed on householders to a percentage of
current value. The

11 Oct 2000 : Column 431

amendment suggests a zero charge for houses built before 1930; 2.5 per
cent for houses built between 1930 and 1979; and 5 per cent--some might
consider that the going rate--or even higher for houses built since 1979.

The amendment provides also that payment is to be made either at the
change of ownership of the house or at the creation of a lease exceeding 21
years or sooner if the householder chooses. If none of those events occurs
the payment must be made after 30 years.

The amendment has the effect of removing uncertainty from currently
threatened householders who will know the upper limits of their liability. I
have no doubt that many will be horrified that they face such a bill but at
least they have the certainty of knowing the upper limits of this access
charge. I beg to move.

9 p.m.

Lord McIntosh of Haringey: Perhaps it may help the Committee if I
respond immediately because we have some positive things to say about the
amendment--and that may even curtail debate, God forbid!

The Government have made clear that we have considerable sympathy with
the objectives of the amendment. We agree that landowners should not be
able to make excessive charges for granting rights of vehicular access
across their land when such access has been enjoyed for many years
without problems arising.

As the noble Earl made clear in his excellent speech, the situation has arisen
because the Law of Property Act 1925 and road traffic Acts since 1930
have made it a criminal offence to drive over common land without the
owner's permission. Because it is an offence, prescriptive rights cannot be
acquired through long use. This has often been overlooked when properties
on or adjacent to commons have been built or sold, with a result that many
people have been driving over commons to get to their homes or other
property in the mistaken belief that they had a legal right to do so. Their
surprise at discovering that this is not the case no doubt turns to
bewilderment, or worse, when they are suddenly presented with a large bill
which can be as much as 10 per cent of the value of their property should
they wish to acquire such a right.

We understand and share the objectives of the noble Earl. However, there
are a number of problems with the amendment which means that we cannot
accept it. First, it is doubtful that use of the way can be as of right because
driving across common land is a criminal offence. Secondly, the amendment
does not specify a period of time for which the access had to be used. As
drafted, one day's use prior to November 1979 appears to qualify. It may
simply be that the word "since" has been omitted from the amendment. I do
not make any serious point on that.

Thirdly, the amendment would not give the property owner any option.
Provided the conditions were met, the statutory easement would arise and
he would have to pay for it, although he could defer payment. Fourthly, it is
not reasonable to expect the

11 Oct 2000 : Column 432

landowner to wait for up to 30 years for compensation for the grant of
rights over his land. Finally, the dispute resolution procedures in subsection
(6) are inadequate.

We recently announced our intention to table amendments on Report. We
have made details of our proposals available to your Lordships, but I shall
set them out in summary. We intend to set criteria that have to be met for a
statutory right of vehicular access over common and similar land to arise.
The underlying principle is that the property owner or his predecessors must
have been using the access in such a way and for such a time that had the
land not been common land or other land on which driving is prohibited, a
prescriptive right of access through long use would have been acquired.

Secondly, we propose to set a limit on the amount of compensation that the
property owner has to pay to the landowner. We have been at pains to
point out that it would not be right for the property owner to pay nothing to
secure an undoubtedly valuable right. We have proposed a maximum
compensation of 4 per cent of the value of the property with access or one
third of the difference between the values of the property with and without
access if that is lower. I believe that that is in line with what the National
Trust and Surrey County Council charge. Although we have concluded that
4 per cent is an appropriate maximum, we shall listen to any alternative
views.

In the circumstances, I hope that the noble Earl will accept that, subject to
any consultation that takes place between now and Report stage, it is better
to proceed on that basis than to press the amendment.

Baroness Byford: I thank the Minister for making his contribution so
early. I am sure that my noble friend Lord Selborne will be grateful for it.
We are grateful to the Government for coming forward with their own
proposals and for giving us a chance to think about them. We are due to
reflect our thoughts back to them on 16th October. I do not wish to delay
any more, except to say that I fully understand why my noble friend raised
the issue and am grateful to him for having done so. Even a maximum of 4
per cent will be an unwelcome surprise for some. Quite a few elderly retired
people live in such houses and many could have difficulties with such a sum,
particularly if they bought their property cheaply or if it has been passed
down the family and is now valuable. I do not wish to prolong the debate.
We are happy to reflect on the issue and come back.

Earl Peel: I have a question for the Minister that goes to the root of the
problem. I have a great deal of sympathy with the noble Earl's arguments.
There is clearly a problem. As I understand it, the Road Traffic Act 1930
specifically refers to common land to ensure that there is no doubt that it is
not included. Is it sensible, justifiable or, indeed, legal to differentiate
common land from non-common land? Common land is privately owned,
albeit subject to certain rights such as grazing rights and estovers. An owner
of common land should be afforded the same rights as an owner of

11 Oct 2000 : Column 433

non-common land when entering into negotiations with anybody who
wishes to acquire an easement over the land. I am concerned that we are
suddenly creating a differential treatment in law between common and
non-common land. It is very important that the Minister answers that
question.

Lord McIntosh of Haringey: All that I can say is, "good try". Of course
there is a difference. We recognise the difference in law between common
and non-common land. We are considering whether the amendment that we
table on Report should extend to other land on which driving is prohibited.
Our proposals will certainly not assume that there is no difference in law
between the two, because there is.

Baroness Carnegy of Lour: I have not had the benefit of receiving a
copy of what the Government have sent to some noble Lords. That is
inevitable, because the Government were not to know that I was interested,
but I have been taking an interest in the issue for some time. Will the
Government's proposals be retrospective? We would not be pleased if they
were.

My other point is that I have received letters from Mr Michael Farrow, the
freeholder of Newton Common in Hampshire, of which noble Lords will
have heard, and also from the chief legal adviser of the Country
Landowners' Association. I have received those two communications as
well as one from the noble Lord. They both raise in considerable detail the
question of the human rights, under the human rights convention, of the
owners of common land, whether they be local authorities or private
individuals. Are the Government paying attention to that in their proposals?

I am delighted that they are trying to solve that problem. That is excellent
because people are being placed in an awful position. What has happened
to householders is monstrous. However, the problem, as set out by the two
lawyers to whom I have referred, is that it is not only house owners whose
human rights are threatened but also the owners of common land.
Obviously, if the House is to legislate intra vires, it must consider both.

9.15 p.m.

Lord McIntosh of Haringey: I have seen the document, to which the
noble Baroness, Lady Carnegy, refers, from the lawyer to one of the
owners of common land who is concerned with this matter. Perhaps I may
assure her that we are fully aware of the issues relating to the European
Convention on Human Rights and we shall have due regard to that. As to
whether we are legislating retrospectively, we are talking about charges that
will be levied in the future. The cut-off date for those charges is a matter for
the detail of the amendment which we put forward.

Perhaps I may return to the point raised by the noble Earl, Lord Peel. He
asked me whether it was right to differentiate common land from other land.
As I believe I said, the difference is between land on which

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it is a criminal offence to drive and that on which it is not. There is some
land--but only some--other than common land on which it is a criminal
offence to drive.

Owners of common land are of course free to negotiate under the
Government's proposals where they have not enjoyed access for over 20
years. That is at least in common with other land.

Baroness Sharp of Guildford: My name is attached to this amendment
and I should like the opportunity to say a few words about it. I very much
agree with what the noble Earl, Lord Selborne, said. He mentioned the
problems with Surrey County Council. That council has changed its stance
on this particular issue. Having originally granted easement at a peppercorn
rent, it was then reminded by someone that it should be looking to secure
best value for its assets. Since then, the council has sought to gain rather
more for the right of easement.

There is also a very real problem that different jurisdictions within Surrey
County Council have different policies. Guildford Borough Council and
Waverley Borough Council have granted easements at a zero cost. Abinger
Parish Council has a problem in that it owns the common land through a
charitable trust, and it has been advised by the Charity Commission that it
should do the same as Surrey County Council; namely, that, if possible, it
should secure best value for its assets.

Therefore, a real problem exists in relation to differentiation between
different authorities and the inequities that arise as a result. There is also the
problem that has arisen with Newtown, where private landlords have
discovered that they have rights for which they can secure some profit.

From these Benches, I thank the Government for the proposals that they
have put forward. I believe that they are extremely constructive. Some
problems arise as they stand in relation to the issue of those who have had,
so to speak, long-standing rights of way. That can still create inequities. I
believe that we should look at the proposals in more detail and return to the
issue. However, for the moment, I thank the Minister for his proposals.

The Earl of Selborne: I am grateful to the Minister for his words of
encouragement. I am sorry that getting in early did not totally curtail the
debate. However, I am delighted about that because it demonstrated that
there is a feeling on all sides of the Chamber that this matter needs to be
addressed.

Although I have thanked the Minister, he will perhaps not be surprised to
hear that I am not entirely persuaded that what he is recommending meets
the sense of injustice which I believe the Committee feels. It comes back to
the point to which my noble friend Lord Peel, I believe inadvertently,
referred. He wanted to ensure equal treatment for owners of common and
other land. That is exactly what I should dearly like to achieve. However,
owners of common land are in the pound seats. They can never have
prescriptive rights on their land unless those rights can be proved to go

11 Oct 2000 : Column 435

back to 1910; that is, 20 years before the introduction of the road traffic
Acts. In other words, any landowner who, only by going back to 1910, can
say that prescriptive rights can be established is in an extraordinarily
privileged situation.

I am sure that it was not intended but the introduction of the road traffic
Acts in 1930 meant that thereafter, you could not get prescriptive rights and
if an owner did not bother to give an entitlement, as he should have done, or
the householder did not identify who the owner was and could not do so,
then for the rest of eternity, as the law stands at present, he can never have
a right to access his own house. That is because at any moment, an owner
might suddenly appear out of the woodwork, as has happened at Newton
Common, and send in a bill.

I am certainly not happy about the charge of 4 per cent which people must
pay. I know that the Minister suggested that that should be the upper limit
but I believe that will be used as a guideline by the Lands Tribunal and
others. Quite frankly, I believe that anyone who does not send in a bill for
70 years is remarkably lucky to obtain even a fraction of that sum. That is
why I suggested that zero would be an appropriate figure for anyone whose
house pre- dated 1930. Therefore, I shall certainly bring forward a different
proposal on Report.

However, for the moment, I thank the Minister for his positive response and
I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


 
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