Seventh Standing Committee
on Delegated Legislation
Tuesday 18 June 2002
[Mr. David Amess in the Chair]
Draft Vehicular Access Across Common and Other Land (England) Regulations 2002
The Minister for Rural Affairs (Alun Michael): I beg to move,
That the Committee has considered the draft Vehicular Access Across Common and Other Land (England) Regulations 2002.
These regulations derive from powers in section 68 of the Countryside and Rights of Way Act 2000, which came into force on 1 April 2001. They provide a solution to problems brought to the attention of the Government by the right hon. Member for North-West Hampshire (Sir George Young). Several of his constituents had been approached by the owner of common land on which, or adjacent to which, their houses were built.
The owner pointed out to residents that the vehicular access to their premises was across his land, and that it was a criminal offence for them to drive across the common without lawful authority. Because it was a criminal offence, no right of access had been acquired through long use, but he said that he would be prepared to grant a legal right of access in return for compensation. The residents considered that highly unsatisfactory given that the access arrangements had been in existence for many years and there had never been any suggestion previously that they did not have a legal right to use them.
The use had not been illegal until 1925 in many cases, and 1930 in others, depending on different circumstances around the country. Without a right of vehicular access, sale of the residents' properties would be blighted. Any right hon. or hon. Member can understand the difficulties that that would pose to a householder. Furthermore, the amount of compensation being demanded was, in their view, excessive.
The problem is not confined to North-West Hampshire. It appears with a variety of different circumstances in other parts of the country. It is impossible to estimate the full extent of the problem, but it is clear that it is more widespread than was thought when the issue was first raised during the passage of the Countryside and Rights of Way Bill.
After careful consideration of the issues, the Government brought forward amendments to the Bill, which became section 68 of the Act. The section provides for the creation of a statutory easement in circumstances in which a vehicular access crosses land over which it is an offence to drive, and where use of the access has been had for such a time, and in such a manner, that had it not been an offence to drive across the land, a right of access would have been acquired
Column Number: 4
through prescription. In other words, it reflects the arrangements that would have arisen if it were not illegal to drive across the land.
The intention is that the statutory easement should confer the same rights on owners of premises as those that they would have acquired through prescription if the landowner was either unwilling to grant an easement or was seeking excessive compensation for doing so. The section provides the power to make regulations setting out the nature of the statutory easement, the procedures to be followed when an application is made, how disputes should be resolved, and the compensation sum payable to landowners in return for the easement coming into force over their land.
In drawing up the procedures, we have carefully considered the many points put to us during a number of consultation exercises undertaken since October 2000. The regulations prescribe the process to be followed, which involves the owner of the premises submitting an application, containing the information and other details set out in the schedule to the regulations, to the landlord. It is important that the application should contain comprehensive information, as that will form the basis of the registration of the easement with the Land Registry at the end of the process.
The process then provides for the landowner either to accept the application or to object to it by serving a counter notice. The procedures envisage one further exchange between the parties, which is the serving of an amended application or counter-notice before one of them decides to invoke the dispute resolution procedure. That allows a sale face of an exchange between the parties, so that they do not immediately have to go to dispute resolution arrangements.
Disputes about the value of the premises can be settled by a chartered surveyor either agreed by the parties or appointed by the president of the Royal Institution of Chartered Surveyors. All other disputes, such as whether the qualifying criteria have been met or concerning the terms and limitations attached to the easement, will be resolved by the Lands Tribunal.
Once agreement on all matters has been reached by the parties involved, the owner of the premises must pay the compensation sum to the landowner, who must issue a receipt. If the landowner refuses to accept the compensation, it can be paid into court. The regulations provide that the easement comes into existence on payment of the compensation sum. That is sensible and reasonable, as are the compensation sums provided in the regulations. Our objective is to strike a fair balance between the landowner and the owner of the premises.
Sir Paul Beresford (Mole Valley): Has the Minister made any estimates of the upper and lower levels of the compensation, so that he has the broad spectrum, especially of the upper level? In some areas of the country, land values are extremely high.
Alun Michael: That is true, and the value of the premises may be high or low. There is not necessarily comparability between the two. We have had to
Column Number: 5
consider the examples that have been given and try to strike the right balance between the interests of the landowner and those of the owner of premises. Some people suggest that no compensation should be given; others that the level of compensation should be high.
There are also considerable differences, including in comparatively developed parts of the country, although the examples that we have used relate more to rural areas, such as villages and small towns, and others that are extremely rural, where values seem very low. That has been one difficulty experienced in trying to ensure that we get the balance right.
In recent months, I have met hon. Members from both sides of the argument, who brought people to see me to explain their particular circumstances. We are trying to get the balance right. The objective has been to strike a fair balance between the landowner and owners of the premises. Hon. Members may recall that, when the Bill was under consideration in the House, some Opposition Members, rather than the Government, proposed that there should be no compensation. As I said, that might have been reasonable in some cases but unfair to the landowner in others.
We must search for balance and fairness in so far as that can be achieved. I ask hon. Members to bear in mind that we are not dealing with circumstances in which someone has suddenly, out of the blue, started using an illegal access. We are dealing with old access arrangements, in some cases extremely old, predating the legislation that made it illegal to drive across common landthe Law of Property Act 1925 and the Road Traffic Acts that have affected circumstances since 1930.
The arrangements provide for landowners to receive compensation in return for rights over their land that have come into existence by statute. That approach is compatible with the provisions of the European convention on human rights.
Compensation must be proportionate. In some cases, the access arrangements have existed for all but 100 years. In addition, an assertion of what seem to have been spurious rights by a lord of the manor in two or three different sorts of circumstances have given rise to new meaning to the term ''highway robbery''. It cannot be right for uncertainty to be used as a weapon against householders as it has in some circumstances. We need a simple, cheap and effective way of ending an anomaly. When the usage goes back to before 1930, the compensation should be low. After 1930, the law was clear, and the compensation will be higher.
We have listened carefully to the views expressed on the compensation sums in this House, in another place and by the organisations and individuals that have commented on the matter since the Government first issued outline proposals in October 2000.
Sir Paul Beresford: I applaud what the Minister is trying to dowhich was, after all, initially suggested by my right hon. Friend the Member for North-West Hampshire.
The first question that I asked was only half-answered. To choose Surrey as our examplefor obvious reasons, from my point of viewwhat would
Column Number: 6
be the maximum level that many householders would pay? With regard to that, the Minister must have considered a range. What is its upper echelon?
Alun Michael: I cannot put a figure on it. As I have said, we have made arrangements for the appropriate professional institutions to provide advice on the figure so that we can ensure that it is fair. We have tried to set an appropriate percentage level, and for that to be variable. The compensation payable in respect of older premisespremises that were already in existence when it became an offence to drive on common landshould be relatively low. We therefore propose that the compensation sum should be 0.25 per cent. of the value of premises that were in existence on 31 December 1905, and 0.5 per cent. for premises that came into existence after that date, but which were in existence on or before 30 November 1930. For all other premises, the proposed figure is 2 per cent. Those percentages represent a significant reduction in the sums that such owners might expect to pay without these regulations, in which case compensation of up to 10 per cent. of the value of the premises might be sought by the landowner.
I believe that our proposals are fair because of the nature of the history of the circumstances that I have set out, which means that the arrangements under which people have been using this access was such that for many yearsand prior to the Acts on property and road traffic to which I have referredthey were under the impression that they, or their parents, grandparents or previous owners of the property, were using an access entirely legally and with appropriate title.
I have listened to all of the observations and representations on the matter, and I hope that hon. Members will agree that this is a balanced way of approaching it, and of resolving it in the way that was sought by the House when it was first brought to our attention by the right hon. Member for North-West Hampshire.