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Lord Maginnis of Drumglass: My Lords, I hear what the noble Baroness, Lady Scotland, says in response to my points. I believe that she lives in hope rather than expectation—certainly she forces me to do so—for the simple reason that if there is an expectation that somehow First Ministers and Deputy First Ministers will roll over and Lord Chief Justices will reign supreme; if this is merely intended to be a cosmetic exercise as the noble Baroness suggests, then it is unfair to the First and Deputy First Ministers, and it is unfair to those of us who are trying to understand the process. Ultimately it may also be unfair to the community. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Farrington of Ribbleton: My Lords, I beg to move that further consideration on Report be adjourned during pleasure until not before 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.

Consolidated Fund (Appropriation) (No. 2) Bill

Brought from the Commons, endorsed with the certificate of the Speaker that the Bill is a Money Bill, and read a first time.

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Vehicular Access Across Common and Other Land (England) Regulations 2002

7.30 p.m.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty) rose to move, That the draft regulations laid before the House on 14th May be approved [30th Report from the Joint Committee].

The noble Lord said: My Lords, these regulations derive from powers contained in Section 68 of the Countryside and Rights of Way Act 2000, which came into force on 1st April 2001.

The regulations provide a solution to problems which were discussed at some length in your Lordships' House and in another place during the passage of that Act, but originated in a particular example in relation to a common in north-west Hampshire. There the owner of the common had pointed out to the residents that vehicular access to their premises was across his land, and that it was a criminal offence for them to drive across it without lawful authority. Because it was a criminal offence, no rights of access had been acquired through long use, but he would be prepared to grant a legal right of access in return for compensation.

The residents were most concerned about this, given that the accesses had been in existence for many years and there had not been any suggestion before that they did not have a legal right to use them. Without a right of vehicular access, sale of their properties would be blighted. Furthermore, the amount of compensation being demanded was in their view excessive. We rapidly realised that this problem was not, in any sense, confined to north-west Hampshire. Similar problems arose in other parts of the country with different landlords and with different configurations of the ownership and access patterns. Frankly, it is impossible to estimate the full extent of the problem, but it is clear from cases which have been drawn to our attention that it is more widespread than at first thought.

The Government looked at the issues thoroughly and, as was requested in both Houses, brought forward amendments to the then Countryside and Rights of Way Bill, which became Section 68 of the Act. Section 68 of the Act provides for the creation of a statutory easement in circumstances where a vehicular access crosses land over which it is an offence to drive, and where the use of the access has been 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 through prescription. The intention is that the statutory easement should convey on owners of the premises essentially the same rights as they would have acquired through prescription, in circumstances where the landowner is either unwilling to grant an easement, or is 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

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made, how disputes should be resolved, and—crucially—the compensation sum payable to landowners in return for the easement coming into force over their land.

During the passage of the Bill and since a number of Members of this House have taken a keen interest in these provisions and looked forward to the regulations being provided under it. In drawing up the procedures we have taken into account the many points put to us by noble Lords and others during a number of consultation exercises undertaken since October 2000.

The regulations therefore prescribe the process to be followed. That involves the owner of the premises submitting to the landowner an application which contains the information and other details set out in a schedule to the regulations. 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 object to it by serving a counter-notice. The procedures envisage one further exchange between the two parties—by the serving of an amended application or amended counter-notice, before one of them decides to invoke the dispute resolution procedures. Where the dispute is over the value of the premises, disputes 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—for example, about whether the qualifying criteria are met, or the terms and limitations attached to the easement—would be resolved by the Lands Tribunal.

Once agreement on all matters has been reached by the parties, the owner of the premises has to 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.

Noble Lords are probably particularly interested in the compensation sum prescribed by the regulations. Our objective has been to strike a fair balance between the interests of the landowner and the owner of premises desiring access where access has been established. It has therefore always been our intention that landowners should receive some compensation in return for rights coming into existence by statute over their land. That was not of course the position that was taken by all the speakers in your Lordships' House or another place. But we believe that that balance is needed and we believe that approach to be compatible with the provisions of the European Convention on Human Rights.

We listened carefully to the views expressed on the compensation sums in this House, in another place, and by the organisations and individuals who have commented on this issue since October 2000. The conclusion we have reached is that the compensation payable in respect of older premises, already in

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existence at the point when it became an offence to drive on common land, should be a relatively small amount. We therefore propose that the compensation sum should be 0.25 per cent of the value of premises in existence on 31st December 1905 and 0.5 per cent for premises coming into existence after this date, but which were in existence on or before 30th November 1930. For all other premises the figure proposed is 2 per cent. Those are significant reductions in the sums that owners of premises might expect to pay without these regulations, when compensation of up to 10 per cent of the value of the premises have been sought by landowners in some circumstances.

We believe this strikes an appropriate balance. I look forward to your Lordships' contributions in commenting on the regulations. I commend the draft regulations to the House.

Moved, That the draft regulations laid before the House on 14th May be approved [30th Report from the Joint Committee].—(Lord Whitty.)

Lord Trefgarne: My Lords, the House is grateful to the noble Lord, Lord Whitty, for bringing these regulations before your Lordships.

I start by declaring a former interest. I was at one time a trustee of the Horsell Common Preservation Society. One of the cases to which the noble Lord referred was a case brought by a Mr Hanning on behalf of that society. I am no longer a trustee, but am very much in support of its position on the matter.

The regulations, as the noble Lord has said, provide for the implementation of the principles set out in Section 68 of the Countryside and Rights of Way Act 2000. When that piece of legislation was passing through this House, the noble Lord, Lord McIntosh, who was then in charge of the Bill stated:


    "This problem which the Government seek to resolve concerns cases where a property owner has been driving to his home across common land unhindered and continuously for many years".—[Official Report, 16/11/00; col. 421.]

The Minister correctly identified part of the problem but only part of it. There is a separate problem, which I shall now briefly describe.

The problem especially affected the Horsell Common Preservation Society. Premises adjacent to Horsell Common were not a home. For many years, they were quasi-industrial premises and were being used covertly for light industrial purposes. The local planning authority made several attempts to enforce the fact that the business being conducted on those premises was unauthorised. Those attempts failed. The premises continued to be used for unauthorised purposes for a considerable period. Eventually, an easement was sought to the effect that the company had used the road through Horsell Common for so many years that it was entitled to it as of right. Horsell Common Preservation Society went to court, won its case and that was the end of the matter at the time.

However, the mischief—if I may describe it in such terms—remained. The Government, recognising the problem, as did the society, laid these proposals. Unfortunately, despite representations from a number

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of sources, the regulations do not differentiate between domestic and industrial or commercial property. The arrangements that the Government propose for compensation for the owners of domestic property are about right. I have no strong views on that. But they are clearly not right for commercial property.

The plain fact is that had the owners of the property to which I referred, the covert commercial users, gained unhindered access through Horsell Common to their premises, they would have enhanced the value of their property by not 2 per cent but by 200 to 300 per cent. It is wrong that the only compensation they would have been required to pay is the modest figure provided for in the regulations.

The difficulty for the Horsell Common Preservation Society was not only the financial considerations, unjust though they were, but the fact that the use of the road through its common was highly environmentally disadvantageous. I watched the vehicles thundering through myself. From time to time, they placed users of the common in danger. They severely damaged the road and forced the common preservation society to undertake great expenditure to keep the road in reasonable condition.

The arrangements in the regulations to allow easements for commercial property users are inadequate and unsatisfactory. I hope that the Minister will reconsider them. I made those representations to the Minister in a letter to which I have not yet had a reply. It was sent comparatively recently, so I do not complain about that. I hope that he will accept that there is a problem, the nature of which I have described, and will be prepared to consider how to find a solution to it. I look forward to hearing what he has to say.

7.45 p.m.

Baroness Sharp of Guildford: My Lords, we on these Benches also thank the Minister for laying the regulations. As the Minister said, they were the subject of extensive consultation and, like the noble Lord, Lord Trefgarne, I agree that the balance now achieved is probably about right.

However, I should like to raise three issues with the Minister to which he may be able to reply. The first is that of common land of which there is no known owner. To date, there is no commitment to sorting out that question, although it has been discussed. The result is that anyone owning property fronting onto such land at present finds it impossible to sell other than to cash buyers because mortgage lenders seek the certainty of an easement, which cannot be granted as there is no one to grant it. They may accept insurance indemnity cover. One possible solution may be for the valuation of the easement to be made by a chartered surveyor and for all the money to be, in effect, put on one side into a trust for a time. But there is concern about what happens where there is no known owner: who shall make the grant?

The second problem is the question of access over village greens, which is a different issue and something of a legal minefield. I have certainly not understood all

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of the issues involved. But what concerns us most is that, for similar reasons to those obtaining where there is no known owner, there is a danger that people so affected would not be able to sell their house. That is extremely difficult for them. They are locked in until they can sell their house. Has the Minister any proposals for such cases? Is there a deadline by which the Department for the Environment, Food and Rural Affairs make proposals for village greens?

The final issue concerns compensation. Regulation 11(1)(2) states:


    "Subject to paragraph (2), the compensation sum shall be 2 per cent".

Is that the maximum, or will it be levied at 2 per cent? For example, Hertfordshire County Council charges nothing, while Guildford Borough Council at present judges anything between 500 and 1,500, depending on council tax band, which is usually much less than 2 per cent. Will they be allowed to continue to charge less than 2 per cent, or is 2 per cent the requisite sum?

The consultation document published in July 2001 states that where authorities,


    "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 the 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".

Does that still apply? Is that what is proposed?

With those three reservations—on which I hope that the Minister will enlighten us—we welcome the regulations.


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