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People who have been denied the right to access their land due to an anomaly in the law will now be able to purchase that right for a relatively modest sum. Jonathan Kelly reports.
KEY POINTS • A widely overlooked legal quirk means that a right of way for vehicles cannot be acquired by 20 years' usage if the accessway is over common land.
• Regulations now in force give affected landowners the right to acquire a right of way from the owner of the accessway.
• The amount payable for this new right of way will be 0.25%, 0.5% or 2% of the market value of the premises served by the accessway, rather than a ransom figure.
A BIZARRE ANOMALY This article looks at the steps which the Government has now taken to alleviate an anomaly reported in this newsletter some 18 months ago . It concerns the right to drive a vehicle over an accessway which happens to be common land.
BACKGROUND The problem came to light a few years ago when residents of Newton Common, near Newbury, each received an unexpected letter from the owner of a private accessway. The accessway was "common land", but the local residents had been driving their cars along the accessway for decades, to gain access to their homes from the public highway. There was no specific right of access mentioned in their title deeds, but the villagers had always assumed that they had acquired a right of way by virtue of long usage. As is well known, the normal qualifying period for acquiring such a right under the Prescription Act 1832 is only 20 years. No one had ever anticipated any problems.
The letter informed the villagers that they had no right of way over the accessway, because it was common land. It went on to demand fairly large sums of money in return for continuing to allow use of the accessway. While it is certainly a little unusual for a private individual to be the owner of common land, it is by no means impossible.
The villagers rushed to their solicitors, who with some embarrassment confirmed that the owner of the accessway was right. He did, indeed, have the right to block access unless these sums were paid.
THE LEGAL ISSUE - PRESCRIPTION? Why had the villagers not acquired any legal right of way, despite all of them having used the accessway for decades? Surely the normal workings of the Prescription Act would have operated after 20 years so as to convert their use into a fully-fledged legal right?
The answer is buried away in section 193(4) Law of Property Act 1925. This section is obscure even to lawyers, let alone the rest of the property world. This little-known provision says that driving a vehicle over common land or a village green, without lawful authority, is a criminal offence.
So what? Well, it is a general principle that the law cannot be used to give someone a benefit from committing a criminal offence. So a vehicular right of way over common land cannot be acquired by long usage, if that long usage was itself an offence . Therefore the villagers had no legal right of way.
The Newton Common villagers challenged this legal analysis in the High Court, but their claim was dismissed in March of this year. The villagers' counsel, Paul Morgan QC, put forward various arguments in their favour, but Mr Justice Park ruled that section 193 prevented the villagers claiming an easement by prescription. He commented:
"Intrigued though I am by Mr Morgan's argument, and beguiled though I am by his attractive way of presenting it, I cannot give effect to it."
THE SOLUTION Section 68 of the Countryside and Rights of Way Act 2000 gave the Government power to make regulations for the user of the roadway or access land ("property owner") to acquire a right of way by compulsion from the owner of the roadway or access land ("access owner"). This right of way will be, in effect, a statutory easement.
The aim is to allow access owners to claim reasonable compensation for continuing to allow use of the accessway over their land, but to stop them abusing their position by asking for ransom money.
REGULATIONS The Government exercised its power by drawing up the pithily titled Vehicular Access Across Common and Other Land (England) Regulations 2002, which were passed by Parliament on 3 July 2002 and came into force on the following day.
The regulations apply where the property owner would have acquired a right of way by dint of 20 years' usage, but for the fact that the land in question is common land or a village green. (Where the accessway does not run over common land or a village green, the normal rule will apply: an automatic right of way in perpetuity without compensation to the access owner.)
Under the regulations, a property owner who can show 20 years' usage over the privately owned accessway (which forms part of the common land or village green) can claim a statutory easement allowing him or her to continue using the access for good. Various qualifying criteria are laid down, and the access owner has the right to lodge an objection with the Lands Tribunal on certain specified grounds.
If the access owner does not object, or his/her objections are dismissed by the Lands Tribunal, he/she must grant the statutory easement to the property owner. The new easement will last in perpetuity and will generally include ancillary rights to repair and maintain the access at the expense of the property owner served by it. There are other detailed procedural requirements and time limits which are beyond the scope of this article.
The regulations fix the amounts which the access owner can charge for granting the statutory easement.
AMOUNTS PAYABLE FOR ACQUISITION OF RIGHT OF WAY • where the premises were in existence on 31 December 1905, 0.25% of the value of the premises
• where the premises were not in existence on 31 December 1905 but were in existence by 30 November 1930, 0.5% of the value of the premises;
• otherwise, 2% of the value of the premises.
Where the premises are in residential use, and replaced earlier premises on the same site which were also residential, the sum is calculated by reference to the date on which the earlier premises were in existence. The value of the premises means the current open market value with the benefit of the easement.
The criteria for calculating compensation have been modified following comments received by the Government on earlier proposals. The regulations aim to allow a reasonable amount of compensation, without holding the property owner to ransom.
Disputes on price are to be referred to a chartered surveyor, to be agreed by the parties or appointed on the application of either of them by the President of the RICS. The surveyor is to act as an arbitrator unless both parties agree that he should act as an independent expert.
Once the sum is fixed, the property owner will have a right to withdraw, on payment of the access owner's reasonable costs. It would appear that the right of way, once granted, will be restricted to the current use (eg if currently used for cars, the accessway cannot be used for lorries) and a material change in use or redevelopment of the land served by the access may invalidate the right of way.
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