Vehicular Access over Common Land Update...
1st April 2004
House of Lords overturns Hanning vs Top Deck decision. Link
to decision.
The following article preceded the decision mentioned above and is retained for the sake of interest only.
Articles
John Durrant – 35 years in Estate Agency
Hanning V Top deck Travel was a case from 1992 that arose because of the Horsell Common Preservation Society’s wish to prevent double decker busses driving across common land to reach Top Deck’s premises that they had occupied for over 30 years.
In short this case went to Appeal and the Appeal Court determined that because it had been, since the 1925 Law of Property Act, a criminal offence to drive across common land without lawful authority, it was not possible for Top Deck to claim that they had established a prescriptive right that would enable them to continue driving to their premises.
The impact of this decision was felt nationally as householders and other property owners on common land across England, who did not have the benefit of an easement that granted them the right to drive to their home, could no longer rely on them having established a prescriptive right that would allow them to continue to drive to their property.
The point was not lost either on many common land owners who determined to cash in on the ruling. Some owners, particularly some, although not all, local authorities, determined to charge in the region of 10% of a property’s value in return for granting the easement. Others, in particular one parish council, wanted 30%. The local authorities tended, however, to take a reactive approach, only levying the charge when they were asked by a householder to make a grant of easement. Householders for the most part were ignorant of the predicament they were in until they came to dispose of their home. It was only then that they made the unpleasant discovery that they would have to pay the common land owner a huge percentage of their property before a buyer would accept that the property they were selling had a legal right of access by vehicle.
Other land owners were more proactive and actually wrote to householders on their common land. One threatened that unless they paid 6% of the value of their property within a specific period they would, when they disposed of their property after that period, be required to pay 10%. This was enough to attract the attention of Sir George Young Conservative MP who, with great skill and courage guided through an amendment to the Countryside and Rights of Way Act – now known as Section 68.
In essence this says that if someone owns property that predates 1905, then they MAY be able to prove a prescriptive right of vehicular access because this date predates the 1925 Law of Property Act by 20 years. However in order to prove this, common land owners may require statutory declarations covering the entire period between 1905 an today. Sct 68 recognises this as being unlikely and so give owners of property of 1905 and before the statutory right to buy an easement at a cost of 0.25% of the property’s value.
For owners of property between 1905 and 1930 they have the statutory right to buy the easement for 0.5% of the property’s value.
And for properties post-dating 1930, the rate is 2% of the property’s value.
In order to buy an easement under Sct 68 of the CROW Act however, there are a couple of conditions that must be satisfied. The first is that the property would, but for the illegality referred to above, have been able to have achieved a prescriptive right of vehicular access. The second is that there should have been no other agreement in place beforehand. So, if a property has, for example, a licence to cross the common land then this would disqualify a householder or other property owner from being able to claim the statutory right to buy the easement. It should be said, however, that there is nothing to stop a common land owner and a householder/property owner from reaching their own agreement if they have a mutual wish to do so.
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