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Vehicular Acess over Common Land
John
Durrant - Estate Agent
Since 1925 it has been a criminal offence for the public to drive over common land without lawful authority. However, until recently the vast majority of conveyancers thought that if a property had had the benefit of an access for twenty years or more, then a Prescriptive Right had been created that would entitle a resident to continue crossing the common land for ever more.
Then, in 1993, a solicitor acting for The Horsell Common Preservation Society went to court to stop a double decker bus company from taking advantage of its "Prescriptive Right" to drive across Horsell Common to its premises. Roughly translated, Guy Hanning’s (Hanning Vs Top Deck Travel) argument was that as it had since 1925 been a criminal offence for the public to drive across common land without the owner’s consent, it should not be possible that a Prescriptive Right could be created by doing something that in itself was a criminal act.
Not unreasonably the Judge agreed. However, this decision had repercussions for everyone who now has to drive across common land to reach their homes. The only certain exceptions are those people who have a Legal Easement granted by the common land owner, and those who can prove conclusively that there has been continuous wheeled access to their property since before *1905 - twenty years before the Act was passed. (There is some uncertainty as to whether a householder is legally regarded as a member of the public for the purposes of this legislation. However solicitors acting for purchasers usually "play safe" and require certainty in the form of a granted right).
What they charge.
If you own such a property, and if the law regards you as a member of the public (this has yet to be tested at law), then it possibly means that the owner of the common land has the right to prevent you from driving to your property. It is possible then that a common land owner could ask you to pay in return for granting you a legal easement over their land.
It might be that the common land owner is your local authority whose policy on this particular issue will certainly depend upon which Local Authority it is. For example, Woking Borough Council takes the view that it will not actively ask anyone for payment to cross its common land. On the face of it, this seems perfectly reasonable policy. However problems now frequently arise because when properties are offered for sale, inevitably purchasers’ solicitors want confirmation that a property has rights for vehicular access. In consequence, more and more buyers are being advised not to proceed with their purchase without there first being granted a legal easement granting this. Frustratingly, problems over access are often not realised until a transaction has been proceeding for a number of weeks and this usually results in a great deal of stress to those involved and sometimes the purchasers will abort!
Woking Borough Council has recognised this difficulty and has written to the 90 or so people that it has identified within the Borough whose homes are affected. Now it is up to the property owners to respond if they wish to avoid the chance of any future sale being upset by the revelation that they may have no legal right to drive to their property.
The bottom line is that Woking Borough Council has limited the amount it charges, to 5% of the value of a property plus its legal costs. In cases where a property existed before 1905 but conclusive proof is lacking of any wheeled access to it before that date, Woking Borough Council has indicated that it will likely negotiate a lower percentage; in some of these cases they will make no charge.
Different Local Authorities require different amounts - currently, Surrey County Council, for example, will expect up to around 5% of the value of a property in return for making an appropriate express grant. Under certain circumstances Surrey reduces its charges to 1.25%. However for properties valued at more than £400,000 Surrey has no reference scale of charges.
Sayce Letter David Sayce - officer of Surrey County Council, the author of the letters referred to
In the case of many properties, particularly around Worplesdon and Chobham Commons, Surrey County Council as the owner of common lands there sent a standard letter in 1987 acknowledging prescriptive access rights. However, because of Top Deck, SCC now seeks to reverse the effect of their letter even though many purchasers have since relied upon this when buying property. The Council says that the letter was mistaken and should not have been circulated. This change of heart by SCC has caused great consternation amongst those who received the original letter - understandably so.
Hanning Vs Top Deck Travel
Hanning V’s Top Deck travel arose because of the reasonable desire on the part of the Trustees of Horsell Common, to call a halt to Top Deck’s heavy commercial traffic (double-decker busses) using the track that led to its premises over common land. Top Deck Travel had operated from Young Stroat Farm on Horsell Common only since 1965 - some 40 years after the passing of Section 193 of the Law of Property Act that had made it a criminal act to cross common land by wheeled vehicle without lawful authority.
The question arises, therefore, might the Appeal Court judgement have been different had the original case been brought against owners of residential property built before the 1925 Act was passed?
Unfortunately, Top Deck creates more questions than answers. Careful reading of the Judges’ summings up makes it clear that they were concerned to "protect the public interest" and it was apparent that heavy commercial vehicle crossing common land worked against that objective. The effect, though, has been to catch residents in the same trap - even though the circumstances of their vehicular access might be vastly different from those of the Top Deck Travel company.
For the moment, it is safest for lawyers acting for purchasers to interpret the effect of Top Deck as if it applies to all property where there is no express grant, regardless of its residential/commercial status, or the contention that pre-1925 property should be exempted.
Defective Title Indemnity Insurance
Given that the local authorities referred to above have said many times in writing that they have no intention of interfering with any householder’s vehicular access to their home, many householders have been able to obtain insurance cover so that any mortgage lender feels sufficiently protected from loss to the extent that they have so far been happy to advance mortgages on such property.
*Note: In the case of Surrey County Council this date is 1890. The 1925 Act applies to Metropolitan Common Land. Other registered common land is covered by the 1930 Road Traffic Act. However, circumstances of original ownership of this common land mean now that, for Prescriptive Rights to apply, it is necessary to go back 40 years, instead of the 20 years that would otherwise have applied. Return
One question that needs to be asked is how did it occur that several hundreds of properties were apparently conveyed without the benefit of vehicular rights of way? One suggestion is that the evidence is simply missing. That is so because, in the case of sale of any part of land in common ownership after 1881, section 6 of the Conveyancing Act 1881 would have operated to pass all quasi easements which existed at the time of the conveyance, unless there were some express words to the contrary; the section became Section 62 of the Law of Property Act 1925. So, in the case of the sale of a plot of land by the owner of the remainder of the common, it might have been possible to establish the existence of a relevant easement in that way, if there were relevant evidence available. But, unless this could be agreed between the dominant and servient owners, enabling the easement to be recorded on the property register at HM Land Registry, the only way of establishing such an easement conclusively would be by obtaining a court declaration, and the case would founder if lacking evidence.
In essence, largely as a result of the onset of HM Land Registry (mandatory in Surrey since 1951), earlier easements that were acquired by prescription were not recorded. Land Registry disposed of old documents and the evidence was therefore lost forever.
If you have any comments, information etc then please e-mail: johnd@waterfalls.co.uk
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