Hampshire County Council

Policy and Resources, Policy Review Committee

Executive Member, Policy & Resources Item

Amended Decision Sheet

5 and 12 December 2002

County Council Policy Relating to Vehicular Access over Registered

Common Land and Village Greens

Report by the Director of Property, Business and Regulatory Services

1

Summary

1.1

The following decisions are sought:

1

That a revised policy for regularising rights of vehicular access over Council owned Common land and Village Green be adopted based on:

(a) the grant of Statutory Easements in qualifying cases; and

(b) the grant of negotiated Deeds of Grant in all other cases.

2

in respect of 1(a), the Director of Property, Business and Regulatory Services (Head of Estates Practice) be authorised to settle the detailed terms and conditions of each transaction, the financial basis of settlement to be in accordance with the Regulations introduced under Section 68, Countryside and Rights of Way Act, 2000;

3

in respect of 1(b), the Director of Property, Business and Regulatory Services (Head of Estates Practice) be authorised to settle the detailed terms and conditions of each transaction;

4

100% of the capital receipt in respect of the grant of Statutory Easements should be made available to Recreation and Heritage Committee to be held in an accumulating fund for use in financing the better management of the Commons and Village Greens, and in particular the maintenance and management of access tracks, to meet any increased legal liabilities arising out of the Countryside and Rights of Way Act, 2000.

5

As part of the revised management arrangements, monitoring of the use of access routes across the Commons, including any intensification of use or changes to the width of the routes, should be monitored and recorded on at least an annual basis to ensure that the terms of any statutory easements or deeds of grant were being complied with by the grantees.

2

Reason(s)

2.1

To ensure that the County Council's policy accords with the introduction of new legislation under Section 68, Countryside and Rights of Way Act, 2000; and that financial arrangements are put in place to better fund the management obligations on the Council arising from the legislation.

3

Other options considered and rejected

3.1

Maintaining the existing interim policy which would conflict with the County Council's new statutory obligations.

4

Conflicts of interest declared by the decision-maker or a member or officer consulted

4.1

None

5

Dispensation granted by the Standards Committee

5.1

None

6

Reason(s) for the matter being dealt with if urgent

6.1

Not applicable

Approved by:

..........................

Date of decision:

.........................

Councillor T K Thornber

Hampshire County Council

Policy and Resources, Policy Review Committee

Executive Member, Policy & Resources Item

5 and 12 December 2002

County Council Policy Relating to Vehicular Access over Registered

Common Land and Village Greens

Report by the Director of Property, Business and Regulatory Services

1

Summary

1.1

Since November, 1999, the County Council has been implementing an interim policy regulating the grant of vehicular access rights over Registered Common land and Village Greens owned by the Council. Following consideration by the Policy and Resources PRC at its meeting on 5 December 2002 this report recommends the adoption of a revised policy intended to regularise access arrangements for the better management of the Council's landholdings.

2

Background

2.1

The County Council owns the freehold interest in ten areas of Registered Common or Village Green as shown on the plan displayed. It is estimated that in excess of 300 properties benefit from vehicular access taken over these areas of land, principally for residential or agricultural purposes.

2.2

Since the legal decision in Hanning -v- Top Deck (1993), which was reported to the Land Sub-Committee on 4 November, 1999, it has been accepted that vehicular access over Common land and Village Greens was unlawful unless the owner of the property seeking to benefit from such rights (the Grantee) was able to show that either prescriptive rights had been achieved; or that the owner of the Common or Village Green (the Grantor) had given `lawful authority' for such access to be taken over the land.

2.3

Since 1993 a number of public and private landowners have sought `ransom payments' to regularise access rights, prompting protests from people otherwise unable to lawfully access their properties. Such action has resulted in Parliament including provisions in Section 68, Countryside and Rights of Way Act, 2000 (CROW Act) to protect the position of Grantees. Under the CROW Act, the principle of creating Statutory Easements was established to legalise vehicular access over Commons and Village Greens to residential, agricultural and commercial premises where 20 years-plus use could be proven. It was not until July, 2002, however, that the framework for making an application for a Statutory Easement was laid down in the Vehicular Access Over Common and Other Land (England) Regulations, 2002 (the Regulations) made by the Secretary of State for Environment, Food and Rural Affairs.

2.4

The Regulations establish the right of Grantees to claim Statutory Easements where they are able to show that, but for the unlawfulness of the vehicular access over the registered Common or Village Green, they would have otherwise been able to establish a prescriptive right of way for the required 20 year period to 5 May 1993 (the Prescribed Date).

2.5

In all other existing cases where the applicant is unable to prove prescriptive rights, lawful grant, or the right to apply for a Statutory Easement, the grant of rights of vehicular access will continue to be subject to negotiation, including any payment for such rights. In such cases, the owner of the Common or Village Green has the right to refuse the grant of the rights sought. Similar principles will also apply where the Council receives applications for the creation of new accesses over such land.

3

Statutory Easements

3.1

On receipt of an application for a Statutory Easement, the County Council might have grounds for objecting to the application; may seek to restrict the use of the access or benefits to be derived by the Grantee; or may accept the application outright. Where a Statutory Easement is to be concluded, it is proposed that rights by which services are laid to the property should also be regularised in a composite agreement.

3.2

In all instances, the County Council will have the right to seek compensation in respect of the grant of such rights, such to be assessed in accordance with the formula laid down in the Regulations; and may impose conditions relating , inter alia, to management and maintenance of the access track. In relation to the latter, it would not be practicable for owners of the many residential properties to be responsible for maintaining short sections of jointly-used tracks. Responsibility for such management will rest with the Council. It is proposed, however, that liability for the maintenance of accesses to commercial premises should be passed to those businesses as a condition of the Statutory Easement, given that the levels of use are likely to generate more frequent repair work.

3.3

In the event of any dispute, (other than as to the value of the property benefiting from the grant of access rights), either party has the right to refer the matter to the Lands Tribunal for final adjudication.

3.4

The compensation formula is based on the length of time that the property or commercial use has been in existence. In all cases, the payment equates to a percentage of the open market value of the property deriving benefit out of the rights granted, but makes no distinction between properties in residential or commercial use. The Regulations prescribe that the owners of a property in existence at 31 December 1905 would be charged 0.25% of its value; a property first in existence between January 1906 and 30 November 1930 would be charged at 0.5%; and in all other qualifying cases, the charge is to be 2.0%. All payments are one-off charges and a Statutory Easement will protect the interests of existing and future owners of the benefiting property. In addition, Grantees will be expected to pay the County Council's reasonable legal and surveyor's costs incurred in finalising the arrangements.

3.5

The Regulations do not protect the owners of properties who are unable to prove entitlement to a Statutory Easement or who are seeking to create new rights of access. In all such circumstances, the grant of rights of access will be dependent on the negotiation of terms acceptable to the parties. Whilst terms relating to management, maintenance, use, etc. may be the same as for a Statutory Easement, the compensation payable will not be based on the formula prescribed in the Regulations. In such circumstances, the payment will be assessed by reference to precedents laid down in case-law, entitling the owner of the Common to seek a proportion of the development gain achieved by way of facilitating any development potential released by the grant of access rights. Such payments will, however, take into account any conditions imposed in the Deed of Grant.

4

Implications for Hampshire County Council as a Landowner

4.1

Estate Management

The Registered Commons and Village Greens in the County Council's ownership are managed by the Countryside Service within the Recreation and Heritage Department. These areas of land provide important recreational, conservation and amenity facilities and benefit considerably by being in the Council's control.

It is estimated that there are more than 300 properties accessed over County Council owned Common land and Village Greens where arrangements to regularise access rights will need to be concluded. The vast majority will be in residential use and it is unlikely that the Council would wish (or be able) to challenge applications in most of these cases. Nevertheless, there may be operational reasons for seeking to impose management conditions in the Statutory Easements to better protect the Council's interests and minimise the impact on the Common itself.

Given that applications will probably be sporadic, most likely in reaction to `trigger events' such as open market house sales, it is expected that the workload can be managed within current resource limits. Applications would generally be handled by Officers by way of delegated powers, although any settlements relating to contentious cases would be reported to the Executive Member, Policy and Resources as Scheduled Items.

4.2

Financial Implications

Being formula based, the compensation payable to the County Council in respect of the grant of the majority of Statutory Easements will not give rise to significant individual capital receipts. For example, a pre-1905 property valued at £400,000 will attract a 0.25% payment, amounting to £1,000. At the 2.0% level, the sum would be £8,000. Since the draft Regulations were published fourteen months ago, only six applications have been received, all triggered by proposed house sales. It is anticipated that applications for Statutory Easements will continue to only be received on a piecemeal basis.

The Council is under a legal obligation to achieve best consideration on the disposal of any asset or right over land unless the prior approval of the Secretary of State has been obtained. Such a requirement will be met by applying the statutory formula prescribed in the Regulations. Consequently, in relation to the grant of Statutory Easements, it is recommended that the County Council should charge the full levels of compensation permitted by way of the Regulations.

Regularising the grant of vehicular access rights over the Council's Common land and Village Greens could lead to a greater responsibility on the part of the Council to maintain those tracks serving residential properties to a higher standard than would otherwise be considered necessary. The cost of meeting that liability would be unsustainable from current budgets.

In terms of internal accounting arrangements, whilst current Capital Accounting procedures enable receipts of less than £6,000 to be treated as revenue and therefore available in their entirety to Holding Committees, the additional long term maintenance liability that is likely to fall on Recreation and Heritage Committee could be significant.

To assist in relieving this burden, it is recommended that 100% of each Statutory Easement payment is credited to the Recreation and Heritage Committee in the expectation that the accumulating fund is used for the better management of the Commons, including circumstances where there might be an increased liability arising out of the CROW Act in relation to the upkeep of the tracks and margins. For example, if such an arrangement had already been in place, recent action to prevent illegal access over Hyde Common could have been financed out of such a fund without depleting other scarce resources.

4.3

Community Perception

Landowners affected by the Hanning v Top Deck principles will no doubt be disappointed that the CROW Act will require them to pay compensation in respect of a Statutory Easement. Nevertheless, it is considered unlikely that implementation of a revised policy based on the new legislative arrangements will generate poor publicity for the County Council.

The principal area of concern previously raised by the public, and instrumental in securing the introduction of these Regulations, was the opportunistic attitude of some landowners towards maximising payments for the rights to be granted. In implementing it's interim policy, the County Council did not seek to exploit it's legal position, preferring to await statutory resolution of these difficulties Where hardship was being caused by virtue of Grantees being unable to sell their properties due to the legal uncertainties that existed, Deeds of Grant were concluded as if the CROW Act Regulations had already been brought into force. Approval of the details contained in this report will simply bring about formal implementation of the new Regulations.

It is possible, however, that some additional cases of hardship might arise out of circumstances inherited by the Council. For example, the Commons at Shortheath (East Hampshire) and Hyde, Gorley and Mockbeggar (New Forest) were not acquired by the County Council until the 1990's. In these cases, it appears that the Council's predecessors `allowed' some landowners to take access over the Common on terms that could not give rise to applications for Statutory Easements. Whilst the Council would be under no duty to enter into a regularising agreement, in the absence of a negotiated settlement at open market values, it would be under an obligation to prevent continued use of the access over the Common. In many of these cases, it is conceivable that the current owners were not those who developed the property. The current owners will have acted to their financial disadvantage and yet be unable to seek any redress, other than to possibly pursue a negligence action against their legal advisers who acted when they bought the property.

In such cases (infrequent but nonetheless disturbing to those involved), there is an opportunity whereby the Council could exercise its General Disposal Consent powers in offering up to £10,000 discount on regularising the vehicular access rights. Nevertheless, such a discount will be marginal as against the open market value that would properly represent the best consideration achievable on the disposal.

If it were considered inappropriate/opportunistic for the Council to take advantage of these circumstances, the alternative would be for an application to be submitted to the Secretary of State for consent to dispose of the rights at less than best consideration. The value could then be assessed either by applying an alternative discount level or by way of voluntarily invoking the CROW Act Regulations and applying the maximum 2% levy.

In individual cases where serious hardship is shown to have arisen, terms for regularising the access arrangements should therefore be negotiated on the facts of each case and for settlements to be reported to the Executive Member (Policy and Resources) as Scheduled Items.

5

Summary

5.1

The legal uncertainties relating to vehicular access over registered Common land and Village Greens arising from case law in 1993, have been largely resolved by the recent introduction of the Regulations under Section 68, CROW Act, 2000. This and the recently published regulations, provide the County Council with the opportunity to revise its policy to enable:

· Statutory Easements to be negotiated in accordance with the statutory provisions;


· Alternative arrangements to be put in place to resolve hardship cases where Statutory Easements are not available to applicants or where new access arrangements are to be negotiated;


· Appropriate financing arrangements to be implemented towards the management of the Council's Common land and Village Greens as a valuable resource for the residents of Hampshire.

Recommendations

That:

1

a revised policy for regularising rights of vehicular access over Council owned Common land and Village Greens be adopted based on:

(a) the grant of Statutory Easements in qualifying cases; and

(b) the grant of negotiated Deeds of Grant in all other cases.

2

in respect of 1(a), the Director of Property, Business and Regulatory Services (Head of Estates Practice) be authorised to settle the detailed terms and conditions of each transaction, the financial basis of settlement to be in accordance with the Regulations introduced under Section 68, Countryside and Rights of Way Act, 2000;

3

in respect of 1(b), the Director of Property, Business and Regulatory Services (Head of Estates Practice) be authorised to settle the detailed terms and conditions of each transaction and for settlements to be reported to the Executive Member (Policy and Resources) as Scheduled Items.;

4

100% of the capital receipt in respect of the grant of Statutory Easements should be made available to Recreation and Heritage Committee to be held in an accumulating fund for use in financing the better management of the Commons and Village Greens, and in particular the maintenance and management of access tracks, to meet any increased legal liabilities arising out of the Countryside and Rights of Way Act, 2000.