Briefing Note for councillors: Access over Town Council Land
Issued to: Burial Committee 1/7/2020
Purpose of Report
To consider the request for an easement over Town Council land
Background
Greenslade Taylor Hunt (GTH) are the Town Council’s managing agents of the piece of land adjoining Brent Road Cemetery, that the council let on a grass keep agreement. GTH have been approached by the neighbours, Mr & Mrs Olding, of Haven’s Cottage to enquire whether they could acquire a right of access over the council’s land to their land to the rear of their property. I understand from an email I have received from GTH that they are possibly looking into to trying obtain planning permission on the land to the rear of the property for residential. Please see attached plan showing the piece of land in question, the land in question that is owned by the council is in green.
The proposal detail
The proposal is the applicants would tarmac the existing access track, used by the Council, from the public highway. The council would still retain ownership of the land and the applicants would have a right of way over it. They would like to put in a new access gate as indicated with the dashed line on the plan.
The access rights would be for all rights, times and all purposes to cross over to the area of land As part of this agreement, the Council might consider some further clauses on Havens Cottage’s drainage to reduce any future issues with the access track. The Council might also like to consider that the applicant should have full maintenance costs of the path. Advice has been taken from our Agent, who suggests that in order to permit this right a payment should be charged by the Council to the applicants for in the region of £15,000 to £20,000 to allow this happen.
Our Agent suggests that any legal and Agent’s fees incurred by the council are required to be paid by the other party so the Council is put back in the same position as though this agreement had not happened, and any planning permissions required would need to be obtained the applicant.
The legal consideration
I approached the legal department of SDC asking for advice and received the
response below from Carol Tucker –Chartered Legal Executive
I have looked at the information that you have provided which appears to be
an acceptable proposal for the Town Council, providing that you have no
alternative use for the access way other that what you have already advised
(access into the grass keep fields).
As I understand it, the proposal is to grant the owners of Haven Cottage (and
their successors in title) a right of way over the land as shown on the attached
plan edged green and hatched black. This would be done by way of an
expressed easement documented and registered against the Council’s land.
An easement has four characteristics as follows:
- a dominant and servient tenement
- the easements must accommodate the dominant tenement
- the dominant and servient must be different people and
- the right must be capable of forming the subject matter of a grant
This means there are two pieces of land in different ownership and one piece of land accommodates the other. An easement is a registrable property right, and therefore must be capable of being granted by deed. Therefore, all of the necessary legal formalities must be capable of being complied with, for example:
Both parties must have capacity both to grant and acquire the legal
right.
The easement must be clearly defined.
Easements are usually positive, giving the dominant owner the right to enter or use the servient land in some way. However, they can be negative preventing something being done on the servient land ( such as obstructing/building).
The granting of an easement over the land will remain in perpetuity. They
are irrevocable rights and cannot be easily abandoned. Easements are
interests in land, so they can be conveyed and bind successors in title to the
land. Therefore, once granted they are not easy to remove.
Although I would be able to act for you in procuring a Deed of Easement I
would suggest that you involve an Agent to negotiate and agree the terms on which you would be prepared to grant the access. Points to consider would be who uses the area at present, what is its current condition, are there any gates or opening , would anyone or the Council suffer in any way by the area being fettered? I would suggest that the use would be for one residential dwelling on foot and vehicular access with an obligation to maintain and pay a proportionate part for maintenance and repair and not to obstruct in any way.
Prior to consideration of the proposal
The Council has agreed its future plans to use the grass keep fields as burial land.
To use the land for this purpose it will probably have to have the level raised by at least a metre and the construction lorries would access these fields via this access lane. We currently own this access between Chandos Lodge and Haven Cottage.
Eventually if this Grass keep land is used as burial land the access would be through the existing main Brent Road Cemetery.
Financial implications
£15000 to £20000 Income circa one off receipt
£xx full repair costs of access lane paid by the applicant
Options/Recommendations
It is unknown at this present time if the grass keep land would be granted planning permission to be used as further burial land. The requirements from the Environment Agency are constantly changing and the Council should keep in mind what purpose the land would have if permission for a burial site is denied. Grant of an easement is a right of way that will exist in perpetuity and may affect land use in the future.
Report author: Lorna Williams – Deputy Town Clerk
Report Date: 25th June 2020