Archived decisions

Hampshire County Council

Executive Member, Policy & Resources Item 6

17 February 2005

Revision of County Council Policy Relating to the Vehicular Access

over Registered Common Land and Village Greens

Joint Report by the Director of Property, Business and Regulatory Services

and Chief Executive

How the conclusion in this report fits in with the Corporate Strategy

Aim 5 - Improving services - operation of the amended policy will ensure that the Council continues to provide improved services in accordance with statutory requirements.

1

Background

1.1

The County Council owns 10 Registered Commons and 1 Village Green and in the last few years the ability to grant rights to householders and businesses to take vehicular access across this land has been affected by evolving case law and legislation.

1.2

The introduction of Regulations made under Sections 68, of the Countryside and Rights of Way Act, 2000 (the CROW Act) which enabled vehicular access rights over Registered Commons and Village Greens to be regularised, was the catalyst for the County Council to adopt a new policy by which its landholdings would be better managed in this respect. This policy was approved by the Executive Member (Policy and Resources) at his Decision Day on 12 December 2002.

1.3

Applications to regularise rights of way by the grant of Statutory Easements (or their negotiated equivalents - collectively referred to in this report as Statutory Easements) have been processed in respect of 13 properties. These were mainly to assist landowners in their attempts to sell their properties with adequate rights to protect the interests of the purchasers whilst also ensuring that the Council's interests were properly protected.

1.4

In April 2004, however, the long-running court case relating to Newtown Common in the north of Hampshire (but not at the time owned by the County Council) was finally decided at the House of Lords in favour of those claiming that prescriptive rights of way can be established over Registered Common Land and Village Greens, even where the long user necessary to prove prescriptive rights was a criminal offence. It is not expected that this decision will be challenged in the European Court.

2

Current legal position

2.1

The Chief Executive advises that a number of implications arise out of the recent House of Lords decision in Bakewell Management Ltd. -v- Brandwood & Others.

2.2

From a legal viewpoint, the decision overrules previous case law and thereby effectively renders redundant the creation of Statutory Easements under the CROW Act. Where a landowner can now prove 20-plus years use of a vehicular access over a Common or Village Green, they will have acquired a prescriptive right to such access. If the claimant requires, this would be capable of being confirmed in a simple Deed of Grant, although there would be no strict requirement for them to do so. In such circumstances, the Council would not be entitled to charge for the rights that are confirmed, although any professional costs incurred by the County Council in concluding a formal agreement could be re-charged to the applicant. In line with Decision 2 of the December 2002 policy, it is recommended that the Director of Property, Business and Regulatory Services (Head of Estates Practice) be authorised to settle detailed terms and conditions where prescriptive rights are to be regularised.

2.3

In circumstances where the claimant is unable to satisfy the necessary criteria to establish prescriptive rights of access, however, the County Council will still be entitled to negotiate the grant of appropriate rights at value, as under Decision 1(b) of the existing policy; and it is recommended that detailed terms and conditions of each transaction be settled by the Director of Property, Business and Regulatory Services (Head of Estates Practice) in line with Decision 3.

3

Financial implications

3.1

Under the existing policy, the County Council was entitled to charge value (compensation) for the grant of Statutory Easements. Such payments were calculated in accordance with the prescribed formulae contained in the Regulations made under Section 68 of the CROW Act.

3.2

In circumstances where prescriptive rights can be proven, the Council will no longer be entitled to seek payment of compensation in confirming such rights. It is recommended, however, that where claimants request preparation of a formal Deed of Grant to record such rights (rather than simply rely on their own legal opinions and interpretations), the claimants should be required to reimburse the Council's legal and other professional costs incurred in preparing such agreements.

3.3

With regard to payments already received by the County Council in respect of Statutory Easements concluded under the existing policy, the Chief Executive advises that case law precedent places a legal requirement on the County Council to reimburse those sums. The basis for that advice is contained in the House of Lords Decision in Kleinwort Benson Ltd v Lincoln City Council (and others) [1998]in which it was decided that there is no principle in English law that states that payments made under a settled understanding of the law (ie the CROW Act provisions), which is subsequently departed from by judicial decision (ie the decision of the House of Lords in April 2004), should not be recoverable in restitution on the ground of mistake of law.

3.4

It is further advised, however, that the County Council is entitled to decide that it will only react to formal requests for reimbursement rather than having to initiate action to find parties involved in earlier transactions.

3.5

To date, the individual compensation payments received by the County Council in respect of Statutory Easements has ranged between £495 and £2,125, the total of which now stands at just over £11,000.

3.6

The Policy and Resources Executive Member is asked to note the County Council's legal obligations to make reimbursements in such circumstances and to authorise the Chief Executive to settle the financial arrangements in appropriate cases.

3.7

There is, however, one further complication that needs to be considered; because the Statutory Easements were, under the Regulations, created on payment of the compensation, on reimbursement of such payments, the Statutory Easement ceases to legally exist. Landowners might then simply rely on their previous evidence to support the existence of a prescriptive right or they might ask the County Council to provide a 'comfort' letter confirming that such rights are accepted. Alternatively, to give the claimant greater legal certainty, they may ask for a confirmatory Deed of Grant to be entered into, which will cause the County Council to incur costs. In the latter circumstances, the County Council is recommended to approve that claimants should be responsible for the payment of the County Council's legal and other professional costs incurred in entering into such arrangements.

3.8

Finally, it is recommended that Decision 4 of the existing policy is maintained such that future capital receipts achieved as part of negotiated settlements should continue to be made available to Recreation and Heritage Committee to be held in an accumulating fund for use in financing the better management of the Council's Commons and Village Greens.

4

Summary

4.1

In light of the revised legal position brought about by the decision of the House of Lords in Bakewell, it is recommended that the County Council's policy in respect of vehicular access over Registered Commons and Village Greens in the County Council's ownership should be amended as advised above to ensure that the County Council continues to comply with its legal obligations.

5

Consultation with local Member

5.1

Not applicable

Recommendations

That:

1

a revised policy for regularising rights of vehicular access over Council owned Common land and Village Green, as detailed in this report, to be adopted in order to respond to further changes in established law;

2

the use of access routes across the Commons and Village Greens, including any intensification of use or changes to the width of the routes, should continue to be monitored and recorded on at least an annual basis to ensure that the terms of any Deeds of Grant are being complied with by the Grantees;

3

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

4

100% of the capital receipts secured in respect of the negotiation of Deeds of Grant should continue to 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.