AgriFILE June 2010
Farmers Turn Out for High Speed Rail Seminar
Banbury Town Hall hosts event for farmers affected by plans to build a high speed rail network (HS2) from London to Birmingham.
Over 70 farmers and land agents attended a meeting on 13th May held at Banbury Town Hall to understand the implications of the construction of the HS2 high speed rail link. The meeting was organised by the Agricultural Team at Brethertons Solicitors following the launch of the proposed HS2 link from London to Birmingham.
The audience heard from Bob Thompson an experienced agricultural Surveyor and barrister Wayne Beglan. A BBC film camera man also covered the event.
Agricultural Solicitor Tristram van Lawick, at Brethertons explains: “The HS2 project will affect many farmers. We act for clients who have land affected by the route, and were keen to explain to them the process, timescales and details of compensation payments, if the development goes ahead. ”
Bob Thompson who has extensive experience of dealing with many compulsory purchase cases explained to the audience how their land would be affected. Mr Thompson acted for many farmers whose land was purchased to construct the M40 motorway. Mr Thompson outlined the elements of compensation that can be claimed if a compulsory purchase order were to be enforced.
Wayne Beglan an experienced planning and regeneration Barrister explained the legal process the Government will have to follow to bring the high-speed link into being.
Blakesley Show 2010
Brethertons Agricultural Team will making their debut appearance at the Blakelsey Show on 7th August. We are delighted to be involved in such a popular event which really shows the best of the local agricultural businesses. We understand that time is always precious and this is one of the events people make time to come out and show their support for the agricultural community. It is also a great opportunity to meet and catch up so please come and see us at our stand to say hello, have a drink, a bit to eat and perhaps try your luck at our fun laser clay pigeon shoot. We look forward to seeing you all there.
Car Turning Area Creates Right Over Property
A landowner, or even a tenant, who does not prevent another person or persons from making use of their land may lose the right to prevent the use if it persists over a long period. Where such use continues for more than 20 years, an easement, or the right of use over someone else’s property, may be created.
In a recent case, a woman claimed an easement had arisen over her neighbour’s property because she had used the land to turn her car around so that she could reverse into the garage, thereby allowing an easier exit. The neighbouring owner argued that no easement existed because, during a period of time within the 20-year period, the access to the garage owner’s land had been obstructed, requiring the garage owner to access the turning area by driving over her neighbour’s land.
The court found that an easement did exist. It was the use of the land in question that was relevant, not the route by which the land was accessed. The fact that the woman had been obliged to cross her neighbour’s property when her normal access route was obstructed did not prevent a right of way from arising.
However, the court did consider that the neighbouring landowner could build on the land in question, provided that sufficient space was left for cars to be turned around: the right did not extend to the whole of the neighbouring landowner’s property.
Kate Austin, Brethertons’ says:
The important point to note here is that a third party can only acquire an easement over your land if they adhere to the three legal principles of nec vi, nec clam, nec precario (without force, without secrecy, without permission). In other words the third party must exercise the prospective right of way without express permission from the landowner, without having forced their way onto the land and without having taken steps to cover the fact that they have been exercising the right.
There are many cases where neighbours cross our land as a short cut or to make their life easier and we do not think anything of it or take steps to prevent them from doing so, as the acts seem quite innocuous at the time. However if the idea of such a once-in-while act becoming a fixed legal right concerns you, then you should take steps either to prevent it from happening; or to expressly grant permission on terms that will prohibit the right from becoming a legal easement.
Council Not Liable for Injury at Public Event
With summer upon us, many of you will be considering allowing your land to be used for events that are open to the public, whether it is the local beer festival or village fête. However, if someone is injured as a result of an accident which you fail to prevent, are you liable? The answer, which may come as a surprise to many, is sometimes ‘no’. It will depend on whether or not you owe the injured person a duty of care, as was illustrated by a recent case.
A man whose family was attending the Appleby-in-Westmoreland Horse Fair was seriously injured when a horse, which had broken loose, kicked him in the head as he sought to restrain it.
He was concerned that the horse might injure a member of his family, but he ended up being permanently disabled.
The Horse Fair is a centuries-old tradition and is promoted on the website of Appleby-in-Westmoreland Town Council. It is a major local attraction, with more than 40,000 people attending annually. The injured man sued the Council for damages, alleging that its negligence had led to the horse causing him an injury. He argued that the Council’s duty of care extended to making sure that visitors to the fair were covered by public liability insurance.
However, the Council did not own the horse and was not responsible for it. It did not own the land on which the Horse Fair took place and it neither controlled nor directed the activities which comprised the Fair.
The Court of Appeal judges were unanimous in their view that the Council did not owe a duty of care to the man, so whether or not its actions were negligent was not in point. His claim for damages was therefore rejected.
Tristram van Lawick, Brethertons’ says:
In this case, the crucial point is that the Council maintained a significant amount of distance from the event in question, in as much as they did not own the land and they did not control the activities of the fair.
Therefore while this case may offer a certain element of comfort, were you to allow your land to be used for an activity organised by a third party, you may still be liable for an accident that arose as a result of the state of the property under occupier’s liability and a suitable indemnity policy should be put in place.
Farming Family Overturn Will
In a bitter contest involving members of a Norfolk farming family, two brothers have persuaded the court to overturn their late father’s will on the ground that he was mentally incapable when he created it.
The man had made an earlier will, executed in 2001, which left his two sons the family farm on which they had worked all their lives, subject to a life interest in favour of his wife. His two married daughters, both of whom had moved away, were bequeathed legacies of £15,000 each.
The man’s wife died in 2006. At that time, the daughters returned and discovered the contents of their father’s will. Within a week, one of the daughters had driven her father to the office of their solicitor, where a new will was executed. This divided the bulk of the estate between the two daughters.
In a hearing which lasted three days, and contained more than its fair share of accusations of impropriety, the will was deemed by the court to be invalid. Crucially for the brothers’ case, there had been no attempt to check the man’s decision-making abilities, not just his comprehension, despite his age (89) and the fact that his wife of 65 years had been dead for less than a week when the new will was made.
Tristram van Lawick, Brethertons’ says:
There are two main points to take out of this case. The first is the all-too-common scenario where one or more children spend their life working on the farm on the understanding that they will inherit the farm on their parents’ deaths, only to find that the Will was never made or, for one reason or another, the Will was amended so that the farming children do not inherit the farm and find themselves without a home or business.
As this case shows, the death of the parent is not too late to challenge the Will if it does not deal with the situation fairly. However there are very strict time limits on being able to challenge a Will so it is important that if you find yourself in such a situation you seek proper legal advice immediately.
The second point to consider is that if you have an elderly relative who wishes to revise their will, they may need to consider how best to revise their Will without the risk of a later, successful challenge on the grounds of incapacity of undue influence having been exerted upon them. This is an area on which our Wills, Trusts and Probate team advises on a regular basis.
General Boundaries Rule Foils Ransom Strip Registration
When someone must cross a piece of land that is owned by a third party in order to access their own property, the land crossed is known as a ‘ransom strip’, because the price which must be paid for the right to cross the land is often heavy.
In a recent case, two neighbours (A and B) were in dispute over a piece of land which ran along the front of A’s property but which was the means of access from the highway to B’s property. The title to the land was unregistered. B applied to the Land Registry to register the title to the land in their name and A opposed the application.
Both properties had been conveyed many years previously under a single conveyance. The strip of land was included in that conveyance, but was mistakenly not included in the filed plan when the land conveyed was registered at the Land Registry.
In court, the ‘general boundaries rule’ was applied. This means that the boundaries shown on a Land Registry filed plan are indicative only and accurate only to a couple of metres. So when the conveyance was entered into, the ransom strip land was included in that conveyance, even though the filed plan failed to show it.
On that basis, the piece of land belonged to the A whose property was adjacent to it. B had only the right of access over it.
Kate Austin, Brethertons’ says:
It is not uncommon that the Land Registry plans do not match the physical boundaries on the ground one hundred percent. Therefore this case highlights the importance of ensuring that your registered boundaries are correct to avoid a neighbouring owner claiming ownership of land that is yours under the general boundaries rule. This would also be the case where you consider that you may have adverse possession to unregistered land.
Ensuring that your boundaries are correct and that you can prove title to land that you believe you own is important in any event; however it will be of even more importance should your land lie on the route of proposed construction which could lead to compulsory purchase, such as the proposed HS2 route.
Homeowner Clean Bowled When Bales Removed
You read in the last edition of AgirFILE of a Court’s decision to back up the local Council regarding a planning case where the Court felt that development of a residential property had been carried out intentionally to deceive the planning authorities. A recent case serves as a reminder of how strongly local councils are likely to react if they are faced with such a blatant attempt to circumvent planning laws.
The recent case involved a Banstead man who built a home without planning permission, completing it in 2002. During its construction, he hid the building by surrounding it with bales of straw. In 2006 he removed these, believing that the rule which allows a certificate of lawful use to be demanded after four years of use for residential purposes would apply.
In 2007, however, instead of granting a certificate of lawful use, Reigate and Banstead Council issued an enforcement notice, requiring the man to demolish the building. The basis of the Council’s argument was that the erection and removal of the straw bales was part of the building process and so the four-year time limit only started to run in 2006.
A planning inspector upheld the Council’s ruling, so the owner then went to court, which upheld the original decision.
Kate Austin, Brethertons’ says:
This case differs to that reported in the last edition of AgriFILE inasmuch as in the previous case, the defendant had constructed the structure with planning consent and the issue was how the interior had been fitted out and used. In this case the intention to deceive was even more blatant. Councils take a dim view of those who show such blatant disregard for planning regulations and will fight such cases more often than not.
The successful argument made by the Council, that the removal of the straw bales was the final element of construction, shows the lengths to which they will go to fight such flaunting of planning law and the extent to which the Courts will back the Councils up.
However, it should be noted that this was a decision at first instance and an appeal has been listed for the first available date after 23 July 2010. Given the recent development on the Beesley case as set out in the AgriFILE update below it will be interesting to see what the outcome of the appeal will be.
Unclear Drafting Blamed for Dispute Over Right of Way
A recent case in the Court of Appeal illustrates how disputes can arise between neighbours as a result of ambiguous drafting of legal documents. In this case, the dispute concerned the owners of neighbouring properties that had originally been one parcel of land. When the owner died, the property was divided according to the terms of her will. However, the assents which conveyed the land to the beneficiaries were unclear.
Mr and Mrs Bee inherited a cottage adjacent to agricultural land. Mr Thompson, who was a relative of theirs, had acquired the property behind their home from his father.
The two properties were joined by a track, which led from the main street, ran alongside the Bees’ cottage and passed through their garden. The property owned by Mr Thompson contained agricultural buildings, which were in poor condition. He successfully applied for planning permission to build three residential properties on part of his property. Mr and Mrs Bee objected on two grounds. These were that the right of way could only be used for agricultural purposes and the number of houses proposed was excessive.
In the lower court, the judge found that the right of way was limited to agricultural use, as this was what had been intended at the time the original owner’s will was drafted. He also found that the use of the right of way in order to access three residential properties would be excessive, but did not stipulate the number he considered would be fair.
The Court of Appeal overturned the decision. It ruled that the will and the assents should be viewed as a single transaction, so as to give full effect to the intentions of the woman who made the will. In its view, the judge had made an incorrect interpretation in limiting use of the track to agricultural purposes because it prevented Mr Thompson’s property from being used for any other purpose in the future. However, using the right of way for access to three residential properties was excessive for two reasons. Firstly, the track ran through Mr and Mrs Bee’s back garden and the increased use would interfere with their enjoyment of their own land. Secondly, it would also interfere with their own use of the right of way.
As Mr Thompson had neither put forward a case for fewer than three houses in the lower court nor advanced an argument regarding this possibility at the appeal hearing, the Court of Appeal hoped that an agreement on this issue could be reached between the parties to prevent them having to incur further legal costs.
Tristram van Lawick, Brethertons’ says:
This case shows how important it is that rights of way are drafted clearly and are correct. It also highlights the importance of making sure that you have considered what the future use of a property might be. So if you buy farm buildings that you think you may convert into residential or commercial units, having a right of way for agricultural purposes only will not suffice.
AgriFILE Update
Further to the last edition of AgriFILE, and to serve as a reminder that the law is constantly evolving and changing, there are two updates to make to two of the stories in February’s edition.
Update - Failed Property ‘Try On’ has Potential to be a Criminal Offence
In the story Failed Property ‘Try On’ has Potential to be a Criminal Offence we reported how the Court found in favour of the Local Council when the defendant fitted out a building, which was constructed with planning permission for an agricultural building, as a residential property.
However, when the matter went to the Court of Appeal, it produced what the judge described as a ‘surprising outcome’.
To re-cap, Alan Beesley had been granted planning permission by Welwyn Hatfield Council to build a barn on green belt land, for agricultural use only. The Council granted his request on the basis that his application stated that the building was to be used only for storing hay and would not require sewage disposal. In fact, Mr Beesley never used the building as a barn but built a three-bedroom single-dwelling house inside the outer structure and connected the dwelling to the mains drainage system.
After four years of living in the ‘barn’, Mr Beesley applied, under Section 171B of the Town and Country Planning Act 1990, for a certificate of lawfulness for existing use. Under current legislation, there is a four-year time limit for local planning authorities to enforce planning control in the case of domestic dwellings.
The Court of Appeal ruled that although Mr Beesley had clearly intended to deceive the Council in order to build a domestic dwelling on green belt land, the case should not be treated any differently from one where planning permission had been obtained in good faith and there was a genuine alteration to the original plans during the course of building work.
As it stands, the law does not differentiate in any way between circumstances in which planning permission is obtained in good faith and those where the planning application is intended to deceive the planning authorities. Whilst acknowledging that its decision would appear ‘incomprehensible’ to decent, law-abiding citizens, the Court had to rule in Mr Beesley’s favour. It was for Parliament to amend the legislation should it see fit.
Kate Austin, Brethertons’ says:
This case shows that ultimately it is the letter of the law that has to be adhered to and not, what many may see as being, the spirit of it. It also serves to show that even where the logic employed in determining a case may seem sound at first instance; it sometimes proves fruitful to appeal to the next level. Whether the matter goes further and the decision reversed again remains to be seen.
Update - Mind Your River Frontage
In the story Mind Your River Frontage in February’s edition of AgriFILE, we reported on the case of the boat owner who successfully argued that he had acquired legal title to the river bed of the Thames where his boat was moored.
However, this decision has now been set aside by the Court of Appeal. The Court accepted that it was possible to acquire the title by adverse possession (‘squatter’s rights’), but ruled that this had not been demonstrated to have occurred in this case and that a full trial would be necessary to determine whether the man had, in fact, exercised sufficient control over the land in question to justify the claim.
Tristram van Lawick Brethertons’ says:
As we said last time, there are a number of factors that would distinguish this case from many other similar matters, not least of which being that the area of river in question was tidal. Whether the matter does proceed to a full trial remains to be seen and it will be interesting to see what the outcome of that trial will be and how the peculiarities of this case are handled.
