Consultation Notes - (30th July 2001)
Countryside Division
Department for Environment, Food and Rural Affairs
July 2001
COUNTRYSIDE AND RIGHTS OF WAY ACT 2000; Regulations under section 68 relating to vehicular access over common land
This Consultation Note does not form part of the regulations, and has not legal effect. It provides guidance on the main features contained in the regulations. It does not attempt to provide a comprehensive explanation of every provision.
The Department cannot undertake to provide specific advice on individual circumstances. Anyone needing further advice on the likely effect of these regulations on their own position must take independent expert advice.
Background
1. The purpose of the scheme set out in the proposed regulations is to assist those people who have, for many years, driven across common (and other) land to get to their premises, but who have recently found that they have no legal right to do so and who are faced with having to pay a large sum to the land owner in order to acquire such a right.
2. The objective behind the scheme is to enable such people to obtain a statutory easement. Giving essentially the same rights that they could have acquired through prescription, had it not been an offence to drive across the land. In return, they have to pay what is considered to be a reasonable compensation to the landowner, set at a level significantly lower than they could have expected to pay.
3. Nothing in these regulations prevents the two parties coming to some other arrangement over vehicular access rights. However, where a statutory easement is applied for under section 68, the provisions contained in the Regulations will apply.
4. There will be no requirement on the owner of the premises to apply for a statutory easement under these regulations. It is for the owners of the premises to take their own advice as to whether they require an easement created in accordance with the proposed Regulations, and the status and effect of any such easement. It is also for them to take advice on the possible consequences should they decide not to apply for a statutory easement but, nevertheless, wish to continue driving across the land to reach their premises.
5. It will not be possible for the owner of the premises to apply for an easement where the owner of the common land is unknown. The question of unknown ownership raises wider issues that are being considered in the current policy and management review, on which we hope to make an announcement later this year. (The issues were set out in the consultation document Greater Protection and Better Management of Common Land in England and Wales, issued in February 2000). Where there is not known owner of the common, it is unlikely that vehicular use of an access over it will be challenged. If an owner should be found in the future, it will then be open to the owner of the premises to apply for a statutory easement under these Regulations.
6. The regulations do not enable either landowners of the owners of premises to renegotiate the terms of an existing agreement relating to easements granted for vehicular access.
7. Some owners of older premises may be able to produce evidence that a prescriptive right of vehicular access to the premises has already been acquired. If they can do so there should be no need for them to apply for a statutory easement under these regulations.
8. In relation to common (or other land) to which section 193 of the Law of Property Act 1925 and section 34 of the Road Traffic Act 1988 apply, the statutory easement, will, in effect, act as the "lawful authority" (usually granted by the landowner) referred to in those Acts. The grant of the "lawful authority" to drive vehicles across common land (or other land) means that this activity can take place without the commission of an offence. The statutory easement does not, however, convey any other authority that may be needed before driving over the land is permitted. Owners of premises should tae their own advice on whether any other authority is required.
9. This is particularly relevant where the access way is across land registered a town or village green to which section 12 of the Inclosure Act 1857, and section 29 of the Commons Act 1876 apply. Under these provisions it is an offence to undertake any activity that injures the green or interrupts its use as a place for exercise and recreation. It is not possible to grant lawful authority for any such activity, and driving over the green may therefore continue to be a criminal offence under the 1857 and 1876 Acts. Persons wishing to acquire a statutory easement under these regulations over land to which those Acts may apply are strongly advised to seek legal advice before doings so.
10. Although the legal position may not be entirely clear, some owners of premises may take the view that they will only be able to obtain an easement under the statutory scheme, notwithstanding that it may still be an offence to drive a vehicle over the green. In such circumstances the owner of the premises would, in accordance with our proposals, be bound to pay a fixed amount of compensation, even where the land owner is willing to accept a lower sum. Regulation 13(7) therefore provides that a lower sum can be agreed in respect of town and village greens, as we do not consider it appropriate to require a fixed amount of compensation to be payable in these circumstances.
11. The Regulations will have particular relevance to local authorities that own land over which it is an offence to drive. Where such authority wish to grant an easement for less than the price set out in the regulations, it will be open to them to consider whether, in accordance with the relevant provisions of Part VII of the Local Government Act 1972, they wish to seek the Secretary of State's consent for a disposal at less than the best consideration reasonably obtainable. In such a case, specific consent would only be required if the undervalue exceeded that permitted by paragraph 6 of the Local Government Act 1972 General Disposal Consent 1998.
Regulation 1. Citation, commencement and extent
12. These regulations apply in England only.
Regulation 2. Interpretation
13. This contains a number of self-explanatory definitions.
Regulation 3. Prescribed Date.
14. The prescribed date is the date of the Hanning v Top deck Travel Group Ltd [1993] 68 P&CR14. This case served as a reminder to both landowners and property owners that prescriptive rights could not be acquired where the use is a criminal offence. Publicity surrounding the case may have led many landowners to end the use of accesses in circumstances where an application could have been made under these Regulations, had they been in force at the time.
Regulation 4. Entitlement to make an application.
15. This regulation sets out the criteria to be met in order for an application for an easement to be made.
Regulation 5. Nature of easement.
16. This sets out the type of easement being created. The intention is that the statutory easement will give the owner of the premises essentially the same rights that he would have acquired had he obtained the right of vehicular access through prescription.
17. It will also be possible for the parties to agree (or the Lands Tribunal to determine) what other rights and limitation should be attached to the statutory easement.
18. The provisions of the Land Registration Rules 1925 will determine how the statutory easement can be registered with the Land Registry.
Regulation 6. Application.
19. It is for the owner of the premises to decide whether he wishes to apply for the statutory easement. The time within which an application has to be made has been extended from earlier proposals, in order to reflect the possible need for the owner of the premises to produce evidence of his use of the vehicular access (including evidence that rights had already been acquired through prescription).
20. The owner of the premises can ask for the easement t cover any activities relating to the use of the way that would otherwise have been obtained through prescription.
21. 30 November 1930 is the day before the date on which, under the provisions of the Road Traffic Act 1930, it became an offence to drive on common and other land (save in the circumstances set out in that Act).
Regulation 7. Unopposed application
22. Where the landowner has no objections to the application he can notify the owner of the premises and show evidence of title to the land. If he does so within the time limit, it will enable him to receive the compensation payment within 2 months (see regulation 14).
Regulation 8. Opposed application
23. This provides the formal mechanism for a landowner to lodge an objection to the application by serving a counter notice. It is hoped that in most cases the parties can avoid this through negotiations prior to the submission of the application.
24. It contains provisions to enable the landowner to propose that the statutory easement should be subject to rights and limitations in addition to those specified in the application. This is intended to enable charities, and possibly other landowners, to ensure that he statutory easement created does not conflict with other provisions to which the land is subject, or under which the land is held in trust.
Regulation 9. Service of an amended application and amended counter notice.
25. This provides for the service if an amended application of amended counter notice on the other party. Where the landowner notifies the applicant within the specified time limits that he has no objections to the amended application, he can received the compensation sum within 2 months of that notification (see Regulation 14).
Regulation 10. Failure of a landowner to respond to the application.
26. This provides that where a landowner fails to serve a counter notice, or fails to notify the applicant that he has no objection to the application, the application is deemed to be agreed and the applicant may pay the compensation within 6 months. [NB. Where the landowner fails to respond to an amended application the assumption is that the objections made in the counter notice are maintained. One of the parties therefore has to refer the application, counter notice and amended application either to a chartered surveyor, if the only outstanding matter is the amount of the compensation sum, or the Lands Tribunal, in other cases (or both if appropriate)].
Regulation 11. Lands Tribunal
27. This provides that either of the parties may refer the application, counter notice, amended application and amended counter notice to the Lands Tribunal for determination of disputes.
28. Provisions relating to the apportionment between the parties of the costs involved in this procedure, and relating to appeals against the Tribunal decision, are contained in other legislation.
Regulation 12. Determination of compensation.
29. This regulation provides that disputes over the amount of the compensation sum should be resolved by a chartered surveyor. Where the parties cannot agree on a particular surveyor, the regulation contains provisions to enable the President of the RICS to appoint one. The surveyor will act either as an independent expert or an arbitrator and the parties should take advice on the different provisions that apply before deciding which course to choose. Where the parties agree that the chartered surveyor will act as an independent expert, costs will be shared equally by the parties. Where the chartered surveyor acts as an arbitrator, provisions relating to the appointment of costs between the parties are contained in other legislation.
Regulation 13. Amount of compensation.
30. This provides for the amount of the compensation to be paid by the owner of the premises to the landowner, depending on the circumstances.
31. The compensation sum is based on normal valuation practice, which entails an open market valuation of the premises served by an access:
(a) without a statutory right of vehicular access; and
(b) with a statutory right of access.
32. Subject to the provision in regulation 13(3)-(7), compensation will be set at a figure of one-third of the difference between the two valuations. For example, of valuation (a) is £50k and valuation (b) is £80k, the compensation payable would be £10k.
33. Regulation 13(3)-(5) provides for compensation to be restricted to specified amounts. In most cases the amount is restricted to 2% of the open market value of the premises with the benefit of an easement. However, in the case of residential premises that were in existence on 31st December 1905, or premises that replaced a residential property that was situated on the same site on that date and where both the current premises and the replaced property were served by the same access way, the compensation sum shall be 0.5% of the open market value of the premises with the benefit of easement.
34. For residential premises built between 1 January 1906 and 30 November 1930, or premises that replaced a residential property that was situated on the same site between these dates and where both the current premises and the replaced property were served by the same access way, the compensation sum limit will be 1% of the open market value of the premises with the benefit of easement.
35. There is one exception to the compensation provisions, covered in regulation 13(7) where the land over which the access crosses is registered as a town or village green, The justification for this is that there is some doubt as to whether the owner is capable of granting a right of way over a town or village green (see paragraphs 8-10 above). In any case in which this doubt arises, the parties may consider themselves unable to negotiate the grant of an easement outside the provisions of these regulations, as they could have done were the access over any other type of land. We therefore expect that some owners of premises will wish to apply for a statutory easement under section 68, which will, in most cases, provide them with the necessary authority to drive over the green. Regulation 13(7) has the effect that where those circumstances apply, the level of compensation can still be negotiated, subject to the limits set out in regulations 13(2)-(5).
36. We are still considering a "safety net" provision (see regulation 13(6) that would apply in circumstances where the decrease in value of the land over which the access crosses is greater than the compensation payable under the above calculations. In these circumstances the landowner will be able to claim that the compensation sum should be the decrease in value of his land. This will be an issue for the landowner to raise when submitting a counter notice, and he would have to provide appropriate valuations from a qualified person. Views are invited on this provision.
Regulations 14. Payment of compensation
37. This provides how and when the compensation sum will be paid.
38. Where the landowner has agreed either the application of amended application without referring the matter to the Lands Tribunal or chartered surveyor and in accordance with the relevant time limits, he will receive compensation 2 months from the date he confirms to the applicant that he is content.
39. Otherwise, the Regulations provide that the owner of the premises must notify the landowner that he intends to proceed with the application within one month of the compensation sum being agreed by the parties, determined by a chartered surveyor or after the determination of some other dispute by the Lands Tribunal, whichever is the later. He will then pay the compensation sum within 6 months of the date of that notification. The justification for the reduction in time (compared to our earlier consultation proposals) is that the owner of the premises should be able to make the appropriate arrangements to obtain the necessary funds as he now has 12 months in which to lodge his application and should be aware of the possible amount of the compensation when he makes the application.
40. The regulation also allows the parties to negotiate some other timetable, or method of payment.
41. The landowner is required to indicate whether he will provide a receipt on payment of the compensation sum (and evidence of title is not already produced) and, where he has indicated that he will provide a receipt, to do so when the payments is received, Where a receipt will not be given, the regulation provides for the payment of the compensation sum into Court. Regulation 14(9) provides that the easement shall be created upon payment of the compensation sum. Therefore, proof of payment of the compensation sum will be necessary in order to establish the creation of the easement.
Regulation 15. Withdrawal, abandonment or failure to continue with the application.
42. The regulation provides that where the owner of the premises withdraws, abandons or fails to continue with the application, he shall be responsible for reimbursing the reasonable costs of the landowner.
Countryside Division
Department for Environment, Food and Rural Affairs
July 2001
Woking: 01483 773773