Before Clause 64

HC Deb 28 November 2000 vol 357 cc891-9

Lords amendment: No. 99, to insert the following new clause—Vehicular access across common land etc—

"—(1) This section applies to a way which the owner or occupier (from time to time) of any premises has used as a means of access for vehicles to the premises, if that use of the way—

1. (a) was an offence under an enactment applying to the land crossed by the way, but
2. (b) would otherwise have been sufficient to create on or after the prescribed date, and to keep in existence, an easement giving a right of way for vehicles.

(2) Regulations may provide, as respects a way to which this section applies, for the creation in accordance with the regulations, on the application of the owner of the premises concerned and on compliance by him with prescribed requirements, of an easement subsisting at law for the benefit of the premises and giving a right of way for vehicles over that way.

(3) An easement created in accordance with the regulations is subject to any enactment or rule of law which would apply to such an easement granted by the owner of the land.

(4) The regulations may in particular—

1. (a) require that, where an application is made after the relevant use of the way has ceased, it is to be made within a specified time,
2. (b) specify grounds on which objections may be made and the procedure to apply to the making of objections,
3. (c) require any matter to be referred to and determined by the Lands Tribunal, and make provision as to procedure and costs,
4. (d) make provision as to the payment of any amount by the owner of the premises concerned to any person or into court and as to the time when any payment is to be made,
5. (e) provide for the determination of any such amount,
6. (f) make provision as to the date on which any easement is created,
7. (g) specify any limitation to which the easement is subject,
8. (h) provide for the easement to include any specified right incidental to the right of way,
9. (i) make different provision for different circumstances.

(5) In this section—

"enactment" includes an enactment in a local or private Act and a byelaw, regulation or other provision having effect under an enactment;

"owner", in relation to any premises, means—

1. (a) a person, other than a mortgagee not in possession, who is for the time being entitled to dispose of the fee simple of the premises, whether in possession or in reversion, or
2. (b) a tenant under a long lease, within the meaning of the Landlord and Tenant Act 1987;

"prescribed" means prescribed by regulations;

"regulations" means regulations made, as respects England, by the Secretary of State and, as respects Wales, by the National Assembly for Wales.

(6) Regulations under this section shall be made by statutory instrument, and no such regulations shall be made by the Secretary of State unless a draft has been laid before, and approved by a resolution of, each House of Parliament."

8.45 pm

Sir George Young (North-West Hampshire)

I beg to move, That this House agrees with the Lords in the said amendment.

Mr. Deputy Speaker (Sir Alan Haselhurst)

With this it will be convenient to take the following: amendments (a) to (c) and consequential amendment (d), and Lords amendment No. 132.

Sir George Young

I support Lords amendment No. 99, but I believe that the legislative landscape would also be enhanced by the planting of amendments (a) and (c). When we debated this matter on 14 June, I described the plight of my constituents in Newtown common, who suddenly found that the common had changed hands and that the new owner was seeking to charge them between 6 and 10 per cent. of the value of their homes—tens of thousands of pounds—for the privilege of driving a few yards from the main road to their front doors across common land, which they had been crossing for nothing from time immemorial.

Both Government and Opposition Members spoke in favour of the amendments that I had tabled, because the problem goes far wider than Newtown common. People who had done all the necessary searches when they bought their homes were confronted with unexpected, and in my view unjustified, bills. At the end of that debate, the Minister was clearly moved by what he had heard. He used language even stronger than the language that I had used. He spoke without restraint, and the words "outrageous", "spivvery" and "blackmail" crossed his lips—and, indeed, appeared in Hansard at column 975.

The Minister then looked down at his script, prepared for him by his civil servants, and discovered to his dismay that he was briefed to resist the amendments that would have ended the outrage that he had condemned. He told us that none of the options was straightforward and said: If I could think of a solution to it now, I would offer it.—[Official Report, 14 June 2000; Vol. 351, c. 978.] He then invited the people's party to vote for this indefensible feudal practice, which it did.

Happily, the injustice has been put right in another place, thanks to my noble Friend the Earl of Selborne. The Labour party may find it odd that two old Etonians, one an hereditary baronet and the other an hereditary earl, have had to do battle with the Labour Government on behalf of those living in the old cottages off Newtown common, to defend them against its rapacious owner. Life is full of paradoxes.

In fairness to the Minister, I must say that he has played a key part in finding a solution, for which I thank him. He patiently listened to a delegation that I brought to his office and he gave me encouragement at crucial stages.

On 2 October, the Government began consultations on a solution that would have capped at 4 per cent. the charges that people had to pay to drive over common land. After the consultations ended—I commend the Newtown Residents Association for its representations—the Government made further welcome concessions, and on 3 November they proposed that post-1930 houses would attract a charge of 3 per cent. and pre-1930 houses 1 per cent. Those are welcome steps in the right direction.

I tabled amendments (a) and (c) to tidy up two loose ends. I am no longer pressing the proposal to defer the payment of the charges until the property next changes hands, nor am I seeking further to lower the percentage, but I must press the Government on the date by which the regulations under Lords amendment No. 99 are to be introduced.

Without the regulations there is no protection, and people will find it difficult to sell their houses until the problem is sorted out, because the purchasers will not want the uncertainty. Amendment (c) gives the Government six months in which to make the regulations. We must maintain the momentum and not let the issue run into the sand. I hope that the Minister will give us some comfort on the crucial question of the timetable.

Amendment (a) would require specific provision to be made for those living in pre-1906 houses. My noble Friend Lord Selborne made the case well in his speech last Thursday. In my view, those with pre-1906 houses will have acquired a prescriptive right to drive back and forth before 1926, when the law changed—but I am not a lawyer, and there may be some doubt about the matter.

Ideally, those with the older houses should have their position made clear in the regulations by its being made explicit that nothing is payable. The clarity of everyone else's position, thanks to the Lords amendment, now contrasts with the lack of clarity about the pre-1906 houses.

There is another matter that the Minister in another place said that he would consider sympathetically: the length of time that people have before they serve a notice on the common owner. Six months may be all right for the 1 per cent. and 3 per cent. people, but those who believe that they may have to pay nothing may need a little longer to resolve the uncertainty.

If the Minister can say something helpful about the amendments, we may be able to move on and make progress with the remaining stages of the Bill.

Mr. John Maples (Stratford-on-Avon)

I support the amendments. Yarningdale common, in the village of Claverdon in my constituency, is owned by the parish council. The Minister has been helpful with regard to the problem there, and I hope that it can be resolved by means of local government legislation, as he has suggested.

I did not expect that a clause and draft regulations would be available by this time to deal with the difficulties that my right hon. Friend the Member for North-West Hampshire (Sir G. Young) described, and I am grateful to the Minister on behalf of about 26 of my constituents. They are quite seriously affected and are being held to ransom by the parish council. Sums of up to £30,000 have been demanded from some of them, although some settlements have been lower.

I have a few small questions about the draft regulations, about which I hope that there will be further consultation. What is the timing for the regulations? I do not see why we should have to wait six months for their introduction, given that they already exist in draft form. Amendment (b) would change the period to three months, and I hope that the Minister will say why that is not appropriate.

I am also worried about the requirement that applications be made within six months. That should be relaxed slightly, especially, as my right hon. Friend the Member for North-West Hampshire noted, in the case of houses built before 1906. They belong to a different category. At least 25 of the 27-odd houses on Yarningdale common were built in the 1880s. They were sold by the then lord of the manor to their tenants in 1885 or 1886. It is difficult to see how the new owners could not have acquired a prescriptive right by the time that the Law of Property Act 1925 came into effect.

Those people would have had nearly 40 years of adverse possession by the time the 1925 Act came into effect, but that is, of course, impossible to prove now. Many of the properties have been through four, five, six or more owners since then. Those changes of ownership limit the potential for gathering the necessary evidence, and a person would have to be more than 100 years old to be able to give first-hand evidence.

Although it is almost impossible for the people involved to prove that they acquired the prescriptive right of way, it is also almost impossible to argue that they did not. For that reason, I believe that a special category should be drawn up to cover pre-1906 houses. It is difficult to imagine that their owners should have to pay anything in relation to the value of the property. I suggest to the Minister that perhaps they should pay some administrative fee instead. They should certainly be expected to cover legal expenses, and perhaps to pay something to the landlord for his time and trouble. Basically, however, those people should be able to get their title confirmed and acquire a rectifying deed for nothing.

My final point has to do with a reference in the draft regulations to land where the number and use of buildings and land served by the access is materially unchanged. Most of the properties around Yarningdale common are well over 100 years old, and change has probably taken place there—for example, a barn may have been converted into a house in a place where previously there was only one dwelling.

In many cases, too, houses may have been rebuilt. Although a house may have one access to a piece of land, there might originally have been a cottage built in the early 19th century that was knocked down and rebuilt. The same provisions should apply in those circumstances, because in the context of the Law of Property Act 1925, the time for which the right of access has been used will depend on when the original house was built, not on when it was rebuilt.

I hope that the Minister can deal with those points. I hope, too, that the regulations can be brought into effect as soon as possible, and that we can consult on them in advance. That will probably represent our only opportunity to deal with the problems that have arisen, so we must ensure that the regulations cover all eventualities.

I end by thanking the Minister again for his extremely constructive and open approach to the matter.

Mr. David Heath

I echo what has been said by the right hon. Member for North-West Hampshire (Sir G. Young) and the hon. Member for Stratford-on-Avon (Mr. Maples). This is a welcome move on the part of the Government to deal with a long-standing problem. A great deal of effort has been put into finding

an appropriate solution. The right hon. Gentleman and the hon. Gentleman both talked about the early introduction of the regulations, and I support their view that an early introduction is to be desired.

I am also concerned about the tiered structure of compensation, which will be a matter for further discussion when the regulations are introduced. There is an argument that 3 per cent. for a post-war house—although modest in comparison with what might otherwise have been levied—may still represent a substantial amount for a householder to find. Perhaps 2 per cent. might be more appropriate. However, now is not the time to debate that in detail. Now is the time to welcome what the Government have done, and to support the inclusion of the provision in the Bill.

Mr. David Prior (North Norfolk)

I, too, thank the Under-Secretary of State for what he has done to bring about the amendment. I also pay tribute to my right hon. Friend the Member for North-West Hampshire (Sir G. Young) for all the work that he has put into this matter. The regulations are not ideal and give the Minister enormous discretion, allowing him to make different provision for different circumstances. However, given the complexity of the status of common land and vehicular access over it, that is perhaps not surprising.

I do not understand the difference between the 1 per cent. compensation for properties built before 1930 and the 3 per cent. for properties built thereafter. Three per cent. is still a big figure; it is a windfall to the owner of the access and a liability that the property owners had no idea they had. Could that 3 per cent. be reduced—perhaps to 2 per cent.? Also, could part of the consideration we are talking about be set aside to help pay for the upkeep of access roads across common land?

Reference has been made to when the regulations will come in, and it is extremely important that they come in as soon as possible. A number of my constituents in West Runton are considering selling their properties, while other people are considering buying and taking out a mortgage. They all find that their transactions are effectively frozen for the time being.

We have discussed the definition of property. The regulations do not address that problem, although it was addressed in another place. It is important that it is made explicit that "property" includes agricultural land, market gardens and other similar properties. We have heard today about deferring payment, and I hope that it will be deferred until the property is sold. It is often only at that point that the owner has ready cash to make the payment. There has also been talk of making payments by instalment. Given that in some cases payment will be being made for the first time for hundreds of years, I do not see why the owner of the access way cannot wait until the property is sold.

Finally, it would be helpful for the Minister to confirm that those who had access to property prior to 1906 acquired a prescriptive right thereby. When we are looking at records that go back through the mists of time—perhaps over 200 years—it is important to know exactly where access paths of right went; often these would be cart tracks to farms. It may not be easy to establish where the prescriptive right exists, but it would be helpful if the Minister could confirm that there is such a right.

Mr. Dominic Grieve (Beaconsfield)

I, too, welcome the fact that the Minister has taken on board, appreciated and acted on the representations made when this matter was last debated. Lords amendment No. 99, to be inserted before clause 64, goes a long way to meeting all the points that I raised on the previous occasion.

9 pm

I should simply like to endorse two important points. The first is about properties built before 1906. I do not believe, and I do not believe that the Minister believes, that people should get something for nothing, yet that is what will happen if some percentage is levied to grant the easement. It should be able to be granted simply on payment of the legal fees. Under the Law of Property Act 1925 and its associated legislation, Parliament, quite intentionally, deprived people of an existing right. It is for us to put that wrong right today.

I hope that the Minister can provide reassurance that for properties built before 1906, no charge will be levied. That would be justice in a situation that has been riddled with gross injustice. Some landlords, particularly in Gerrards Cross in my constituency, have effectively sought to blackmail the owners of properties, many of which predate 1906.

Secondly, may I urge speed on the Minister? This problem has caused a lot of real hardship. Some of the people who occupy such properties are not wealthy. They may have a capital asset, but that does not mean that they have ready cash. Some cannot sell their property because of the difficulties of obtaining the easement. I very much hope that it will not be long before the legislation is introduced and the regulations made.

I repeat my thanks to the Minister for having listened to and acted on the representations that many right hon. and hon. Members have made on this matter.

Mr. Richard Page (South-West Hertfordshire)

I echo the words of my hon. Friends the Members for North Norfolk (Mr. Prior) and for Beaconsfield (Mr. Grieve) in thanking the Minister for listening to our pleas and for coming forward with this solution.

I also pay tribute to my right hon. Friend the Member for North-West Hampshire (Sir G. Young). He is the general in this campaign and has argued the case with great dexterity. I am but a mere spear carrier who has supported his army in this debate. I know that my constituents who had lived in sweet innocence in Chorleywood common for a number of years until this bombshell burst on them are grateful for the reduction that has been obtained.

My parish council is also grateful for what has happened. Its members found themselves in the difficult position of having to charge inflated and increased prices, to the detriment of people in Chorleywood common. I know that they are glad that a much more reasonable figure can be charged. A number of people feel that even the figures involved now are too high. Nevertheless, compared with what the percentage was, and what it could have been, they are much better.

On my right hon. Friend's amendment (c), which I support, I put it to the Government—again in the sweet innocence that characterises my approach to life—that if they are prepared to offer three months for consideration of a change in the air traffic control regulations and rules, the proposed period of six months is positively generous. I am sure that the Minister will have no difficulty in accepting the amendment.

Mr. Eric Forth (Bromley and Chislehurst)

I, too, join my hon. Friends in thanking my right hon. Friend the Member for North-West Hampshire (Sir G. Young) for the work that he has done in this matter and for bringing us to this stage. In doing so, I support his amendment (c) which would provide for a six-month period. That is not only more realistic but would probably give the optimum opportunity for proper consultation. Frankly, it would be better to give right hon. and hon. Members and those with a legitimate interest the opportunity for further discussions with the Minister and his Department to ensure that we get this matter right than to rush at it. I thus prefer a six-month time scale to one of three months.

I am slightly—in fact, more than slightly—worried about the percentages that have been bandied about. Is a uniform percentage appropriate, given the enormous variation in property values up and down the country? It might not be untypical for a property in Chislehurst in my constituency to be worth —400,000 or —500,000. If one applies a 3 per cent. rate to such a property value, people in their later years, who are on fixed incomes, have already made proper provision for their retirement and thought that they could look forward to a comfortable if modest existence, could suddenly find themselves facing rather unexpected hardship. Most people looking at the setting and the houses involved might find that rather difficult to believe, but such circumstances have been brought about by means completely outside the owners' control. Not just the percentage rate but the very variable effect of its application across the country requires careful consideration.

I join others who believe that the Government have been prepared to look sympathetically at the issue. The Minister has played his part. I hope that, having reached this stage, we can make progress and find a resolution that, as far as possible in such circumstances, balances all interests involved.

Mr. Green

I add my thanks to those of others, both to the Minister for the way in which the Government have shown a degree of flexibility, and particularly to my right hon. Friend the Member for North-West Hampshire (Sir G. Young), who has indeed marshalled his troops with skill and aplomb, as one would expect.

There is still a point at issue about the appropriate period before the Government implement the regulations. As has been said, the draft regulations are now out for consultation. So, on the surface, a three-month period seems preferable to a six-month period. If, however, the Minister gave some cogent reasons why a six-month period would be preferable, we would of course listen to him.

The underlying point that must be made is that some end must be included in the provision. Clearly, the many people who are affected by the matter will want to know how long the uncertainty will last. As has been said, many of them will be elderly people. Therefore, such uncertainty stretching for months and years will cause them particular distress.

To some extent, the issue of whether the period lasts for three or six months is secondary, but the matter of urgency is clearly a first-order issue. Since the Government have so far acted so constructively, under the influence of the persuasive arguments of my right hon. and hon. Friends, I urge them to take that final step to reassure people about when the new rules will be implemented.

Mr. Mullin

It gives me particular pleasure to agree with the Lords amendments and to respond to Opposition amendments. From the moment the right hon. Member for North-West Hampshire (Sir G. Young) raised the subject with me, I was alive to the iniquity of the situation. As he will recall, I attempted, by meeting those involved in his constituency case, to reach a solution to the problem as it then stood. I am particularly pleased that it has now proved possible, as a result of the right hon. Gentleman's assiduous and skilful campaigning, to amend the law to ensure that the circumstances with which his constituent and others were faced cannot be repeated. I congratulate the right hon. Gentleman on the way he has conducted his campaign.

The purpose of Lords amendment No. 99 is to protect property owners who have been driving across common or similar land for many years, and who are now faced with having to pay an excessive fee to the landowner for acquiring the right to do so. I think that the right hon. Gentleman accepts that we are not talking only about cases such as the one in Newtown, in which someone was in business to make a lot of money as quickly as possible. That is not the only circumstance. Local authorities and the National Trust also manage commons, and they have some rights that must be considered. Therefore, we have tried to arrive at a solution that is fair to everyone. In other cases, the sort of problem that arose in the right hon. Gentleman's constituency has never arisen.

The solution that we are considering—this is why it is not possible entirely to write off the charge—has to take into account the interests of those commons that have been properly managed and about which there is no particular complaint. The Lords amendment gives the Secretary of State the power to make regulations that will contain the details of the scheme. The main elements of the scheme will include establishing that the access way has been used in such a manner and for such a time that the prescriptive right of access through long use would have been acquired, a limit on the amount of compensation that the property owner has to pay the landowner, and comprehensive dispute resolution procedures.

I am glad to say that there is welcome agreement on both sides of the House about the need to provide such protection, although there is some dispute about the details. We shall return to the details in subsequent debates on the regulations, so this is not the final say on the matter. There is still scope to affect the drafting of the regulations. They have yet to be drafted, and they will require consultation with all the affected parties. As the right hon. Member for Bromley and Chislehurst (Mr. Forth) said, it will be necessary to draft the regulations carefully. We want to get the matter right, and once we have done so, I hope it will no longer be a source of grievance for the constituents of the right hon. Member for North-West Hampshire and others.

Lords amendment No. 132 clarifies the definition of "town or village green" contained in the Commons Registration Act 1965 and provides for regulations to be made that will clarify when the applications for registration have to be made. I repeat that the Government will consult widely on the content of the regulations.

I shall try to respond to some of the points raised. The hon. Member for Somerton and Frome (Mr. Heath) said that 3 per cent. was too high. That is something that we can consider when the regulations are drafted, but we are trying to reach a fair balance between the parties and take into account the interests of those commons where there is no dispute and the National Trust or local authority has a perfectly acceptable relationship with the people who live around the common. The upkeep of access roads was also mentioned. We can certainly consider that as part of the regulations, which will be subject to the affirmative procedure so that there will be an opportunity to discuss the matter in more detail.

The hon. Member for North Norfolk (Mr. Prior) mentioned the definition of a property. The Bill uses the word "premises", which relates to buildings, land, and land and buildings. The possibility of deferring payments can also be considered in drafting the regulations. As for older houses, for which the right has existed for longer, property owners have to provide evidence of prescriptive rights. I appreciate that it is difficult and that we are talking about houses that may be 100 or more years old. I am advised that to change the situation would be at odds with the laws on prescription and would put a small number of property owners in a very advantageous position. I appreciate that the right hon. Member for North-West Hampshire will wish to return to that point, but I hope that I have said enough to show that there is plenty of time to get the matter right and deal with each of the issues that hon. Members have raised.

On the question of timing, as I said, we shall have to consult first. The regulations do not exist yet; this is new territory. I share the desire expressed by all hon. Members that they should be dealt with as speedily as possible, and I can give an assurance that we shall do so. In view of their kind remarks about my approach to the problem, I hope they will accept that that assurance can be taken seriously.

9.15 pm

Sir George Young

Is it possible for the Minister to say that by the end of June 2001, for example, he expects the regulations to have been made? Is that a target with which he could identify himself?

Mr. Mullin

I do not want to get trapped into giving any specific target date, but I would be extremely disappointed if we had not sorted out the matter by then. On the basis of those sentiments, I hope that the right hon. Gentleman will not press his amendment.

Lords amendment agreed to.

Lords amendments Nos. 100 to 103 agreed to [Some with Special Entry].