28 July 2010

Right of Way over Village Green Established

In an unprecedented challenge of established common law principles, Ashton Graham was introduced to a dispute between Haughley Parish Council and Palmers Bakery in 2004, which was settled this week. The case was a challenge by the Parish Council against the bakery as to whether it had vehicular right of access across the Green - in addition to parking, drainage and other service rights.

What made this matter distinct is that, notwithstanding legislation providing an offence to drive across a Village Green, it could be established that the rights had been exercised for centuries, including five generations of the same family. The existing bakery structure next to this Village Green was constructed around the 17th century and had been used for a mixture of commercial and residential use throughout the ages.

Amanda Timcke, the Solicitor who led the team at Ashton Graham, commented: “This has been a very interesting matter for the firm to work on. Given the history involved, it has meant we have needed to unearth and investigate matters dating back to 1189 AD.”

As a result of observations in the case of Moncrieff v Jamieson [2007] Ashton Graham was able to establish that a right to park in an area pertinent to identifiable land was also recognised by law. This gave further weight to the rights, which the Palmers’ Bakehouse had against the Village Green and meant no actual further legal action was required.

Nevertheless, Haughley Parish Council relied upon the Enclosure Award granted in 1853, which meant that the Green should be used for exercise and recreation by the village inhabitants and any interruption not permitted. The Council contended that the relatively recent use of the track across the Village Green did not amount to a right that was legally enforceable.

During the longevity of this dispute, the Commons Act 2006 further permitted Parish Councils and other owners of village green or common land to grant new access rights across its property for a fee. The request for money was later reversed but the principle remains.

Given the legal expense linked to this matter, the case was referred to the Adjudicator of the Chief Land Registrar, to determine each party’s attempts to register their land holdings and their perceived rights. A settlement was finally agreed and now the freehold owner of the Bakery together with the adjoining land has been registered as the dominant owner and hence being able to enjoy the right of way across the Village Green.

Kieron Palmer of Palmers commented, “We are obviously delighted that this matter has finally been resolved. It has taken a long time, but the determination and expertise of our legal team paid dividend, when we were finally able to resolve the issue with the Council. Locating documents and confirming legal matters from such a long time ago can’t have been easy task, but everyone’s perseverance paid off in the end, which we are thrilled about.”

Amanda Timcke
Solicitor
Ashton Graham
www.ashtongraham.co.uk

This article is for general information purposes only and does not constitute legal or other professional advice. You should not act or rely upon this information.

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Ashton Graham Solicitors is regulated by the Solicitors Regulation Authority No. 50075