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2004 No. 248 (W.25)
COUNTRYSIDE, WALES
The Vehicular Access Across Common and Other Land (Wales) Regulations 2004
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Made |
4th February 2004 | |
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Coming into force |
9th February 2004 | |
The National Assembly for Wales makes the following Regulations in exercise of the powers conferred on it by section 68 of the Countryside and Rights of Way Act 2000[1] and all other powers enabling it in that behalf:
Citation, commencement and extent
1.
- (1) These Regulations may be cited as the Vehicular Access Across Common and Other Land (Wales) Regulations 2004 and come into force on 9th February 2004.
(2) These Regulations apply to land in Wales.
(3) For the purposes of paragraph (2), "land" means any land which is crossed by a way used as a means of access for vehicles to premises.
Interpretation
2.
- (1) In these Regulations -
"the Act" means the Countryside and Rights of Way Act 2000;
"the applicant", "the land" and "the land owner" have the meanings given in regulation 3(2);
"compensation sum" means the amount of compensation payable by the applicant;
"easement" means an easement subsisting at law for the benefit of the premises and giving a right of way for vehicles;
"the parties" means the applicant and the land owner and "party" is to be construed accordingly;
"the premises" means the premises served by the way in respect of which an application for an easement is made; and
"the value of the premises" has the meaning given in regulation 11(4).
(2) Any reference in these Regulations to a numbered regulation is to be construed as a reference to the regulation so numbered in these Regulations.
Entitlement to make an application
3.
- (1) An owner of any premises may, as respects a way to which section 68 of the Act applies, apply for the creation of an easement in accordance with these Regulations.
(2) For the purposes of these Regulations, the owner who makes an application is referred to as "the applicant", the land crossed by the way is referred to as "the land" and the person who, for the time being, has the freehold title to the land, is referred to as "the land owner".
Prescribed date
4.
The prescribed date for the purpose of section 68(1)(b) of the Act is 5th May 1993.
Nature of easement
5.
An easement created in accordance with these Regulations will -
(a) be subject to any limitation agreed by the parties or determined by the Lands Tribunal;
(b) include any right incidental to the right of way agreed by the parties or determined by the Lands Tribunal; and
(c) be subject to any rule of law which would apply to the easement had it been acquired by prescription.
Procedure for making an application
6.
- (1) An application for the easement must be made by the applicant serving a notice on the land owner.
(2) The application must be served within 12 months of the date on which these Regulations come into force or, if later, the date on which the relevant use of the way has ceased.
(3) The application must contain the information specified in paragraph 1, and be accompanied by the information specified in paragraph 2, of the Schedule to these Regulations.
Unopposed applications
7.
- (1) Where the land owner does not object to the application, the land owner must, within three months of receipt of the application, serve a notice on the applicant, agreeing to the application.
(2) The notice must contain the following information -
(a) the name and address of the land owner and a description of the land owner's interest in the land; and
(b) a statement confirming that, upon payment of the compensation sum, the land owner will provide a written receipt.
(3) The notice must be accompanied by evidence of the land owner's title to the land.
Opposed applications
8.
- (1) Where the land owner has objections to the application, the land owner must, within three months of receipt of the application, serve a notice (a "counter notice") on the applicant, objecting to the application.
(2) Objections to the application may be made on the following grounds -
(a) the applicant has served the application after the expiry of the period for service;
(b) the applicant has not provided the information required by regulation 6(3);
(c) information provided by the applicant is not correct;
(d) the easement should be subject to limitations other than those (if any) described in the application;
(e) any rights incidental to the right of way, which are described in the application as being rights which should be included in the easement, are not agreed;
(f) the value of the premises is not agreed.
(3) The counter notice must contain the following information -
(a) the name and address of the land owner and a description of the land owner's interest in the land;
(b) the objections to the application; and
(c) any alternative proposals.
(4) The counter notice must be accompanied by -
(a) any evidence relevant to the objections and alternative proposals; and
(b) evidence of the land owner's title to the land.
Amended application and amended counter notice
9.
- (1) Within two months of receipt of a counter notice, the applicant may serve on the land owner an amended application addressing the objections and any alternative proposals set out in the counter notice.
(2) An amended application must contain the information specified in paragraph 1 of the Schedule to these Regulations and must be accompanied by any evidence relevant to the applicant's response to the objections and any alternative proposals set out in the counter notice.
(3) Where the applicant has served an amended application on the land owner, the land owner must, within two months of receipt of the amended application -
(a) serve a notice on the applicant agreeing to the amended application and confirming that upon payment of the compensation sum the land owner will provide a written receipt; or
(b) serve an amended counter notice on the applicant objecting to the amended application.
(4) An amended counter notice must comply with regulation 8(2), (3) and (4)(a) and, for this purpose -
(a) references in regulation 8(2) and (3) to the application, except for the reference in sub-paragraph (a) of regulation 8(2), are to be treated as references to the amended application; and
(b) an objection may also be made on the ground that the applicant has served the amended application after the expiry of the period for service or has not provided the information required by paragraph (2) of this regulation.
(5) Where the land owner has served an amended counter notice on the applicant, the applicant may, within two months of receipt of the amended counter notice, serve a notice on the land owner agreeing to the amended counter notice.
Lands Tribunal
10.
- (1) Where a counter notice has been served, either party may, where there is a dispute relating to any matter other than the value of the premises, request the Lands Tribunal to determine the matter in dispute by sending a notice of reference to the Lands Tribunal in accordance with the Lands Tribunal Rules 1996[2].
(2) The notice of reference must have annexed to it -
(a) the application;
(b) the counter notice; and
(c) if applicable, the amended application and amended counter notice.
Calculation of the compensation sum
11.
- (1) Subject to paragraph (2), the compensation sum is to be 2 % of the value of the premises.
(2) Where the premises were in existence on -
(a) 31st December 1905; or
(b) 30th November 1930,
the compensation sum is to be 0.25 % or 0.5 % of the value of the premises respectively.
(3) Where the premises are in residential use and replaced other premises on the same site which were also in residential use ("the former premises"), the compensation sum is to be calculated in accordance with paragraph (2) by reference to the date on which the former premises were in existence.
(4) For the purposes of these Regulations, the value of the premises is to be calculated as at the valuation date on the basis of the open market value of the premises with the benefit of the easement.
(5) In paragraph (4), the "valuation date" means the date as at which the premises are valued for the purposes of the application, being a date no more than 3 months before the date on which the application is served.
Determination of the compensation sum in default of agreement
12.
- (1) Where no agreement can be reached on the value of the premises, either party may serve on the other a notice (the "valuation notice") requiring the amount to be determined by a chartered surveyor.
(2) Where a valuation notice has been served, the appointment of a chartered surveyor must be agreed by the parties within one month of the service of the valuation notice and, where agreement on such appointment cannot be reached, either party may request the President of the Royal Institution of Chartered Surveyors to appoint a chartered surveyor.
(3) Where a chartered surveyor has been appointed in accordance with paragraph (2), the following provisions apply as appropriate -
(a) where the appointment has been made by the President of the Royal Institution of Chartered Surveyors, the parties are to be equally liable for the costs of that appointment;
(b) unless the parties agree that the chartered surveyor is to act as an independent expert, the surveyor will act as an arbitrator and the provisions of the Arbitration Act 1996[3] apply; and
(c) where the chartered surveyor acts as an independent expert -
(i) the parties will be bound by the chartered surveyor's final decision; and
(ii) each party must bear their own costs and be equally liable for the fees and costs of the chartered surveyor.
Payment of the compensation sum
13.
- (1) Where -
(a) the land owner has notified the applicant in accordance with regulation 7 or 9(3)(a);
(b) the applicant has notified the land owner in accordance with regulation 9(5); or
(c) any matters in dispute have been determined in accordance with regulation 10 or 12,
the applicant must pay the compensation sum to the land owner.
(2) The compensation sum must be paid within two months of -
(a) the date of notification under regulation 7 or paragraph (3)(a) or (5) of regulation 9, as the case may be; or
(b) where a determination is made under regulation 10 or 12, the date of the determination or, if more than one such determination is made, the date of the last determination.
(3) The land owner must, within one month from the date of receipt of the compensation sum, provide the applicant with a written receipt for that sum.
Payment into court
14.
Where -
(a) the land owner does not serve a notice in accordance with either regulation 7 or 8; or
(b) the applicant has served an amended application on the land owner and the land owner fails to act in accordance with regulation 9(3),
the applicant may, within two months of the expiry of the period for service of a notice under regulation 7, 8 or 9(3), as the case may be, pay the compensation sum into a county court in accordance with the Court Funds Rules 1987[4].
Creation of the easement
15.
Upon payment of the compensation sum either -
(a) to the land owner in accordance with regulation 13; or
(b) into court in accordance with regulation 14,
the easement is created.
Notices
16.
- (1) A notice under these Regulations must be in writing and may be served by sending it by post.
(2) Where any notice is required by these Regulations to be served within a specified period, the parties may, except in the case of an application, agree in writing to extend or further extend that period.
Abandonment etc. by applicant
17.
Where the applicant withdraws or otherwise fails to continue with the application at any stage, the applicant will be liable for the reasonable costs incurred by the land owner.
Signed on behalf of the National Assembly for Wales under section 66(1) of the Government of Wales Act 1998[5].
D. Elis-Thomas
The Presiding Officer of the National Assembly
4th February 2004
SCHEDULERegulation 6(3)
INFORMATION TO BE PROVIDED BY THE APPLICANT
1.
The application must contain the following information -
(a) the name and address of the applicant;
(b) a description of the premises;
(c) a description of the applicant's interest in the premises;
(d) details of the current use of the premises and the use during the period giving rise to the entitlement to apply for the easement;
(e) where the relevant use of the way has ceased, the date of the cessation;
(f) where the premises, or, where regulation 11(3) applies, the former premises, were in existence on 31st December 1905 or 30th November 1930, a statement confirming those facts;
(g) the nature of the use of the access, including any limitation or incidental right to which the easement should be subject or which should be included in the easement;
(h) the dimensions of the width of the way; and
(i) the proposed compensation sum to be paid to the land owner in respect of the easement, together with the basis on which it is calculated.
2.
The application must be accompanied by -
(a) a map of an appropriate scale (1:1250 or 1:2500) showing the premises (marked in blue), the way (marked in red) and sufficient other land to establish the exact location of the premises and the way in relation to the surrounding area;
(b) evidence (which may include a statutory declaration) that -
(i) the way is a way to which section 68 of the Act applies; and
(ii) where the application is served after 12 months of the date on which these Regulations come into force, either that the relevant use of the way has not ceased or that such use ceased no more than 12 months before the date on which the application is served; and
(c) an estimate prepared by a chartered surveyor of the value of the premises as at the valuation date, and "valuation date" has the same meaning for this purpose as in regulation 11(4).
EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations regulate the procedure to be followed by persons wishing to apply for an easement subsisting at law for the benefit of premises and giving a right of way for vehicles over common or other land pursuant to section 68 of the Countryside and Rights of Way Act 2000.
Regulation 3 states who is entitled to make an application and regulation 4 the prescribed date for the purpose of section 68(1)(b) of the Countryside and Rights of Way Act 2000.
Regulation 5 states the nature of an easement created pursuant to these Regulations and regulations 6 to 9 set out how to make an application for an easement and the subsequent procedure.
Regulation 10 provides for the Lands Tribunal to determine any matters in dispute between the applicant and the land owner except for the value of the premises. Regulation 11 provides for the compensation sum payable to the land owner in return for the easement, to be calculated by reference to a percentage of the value of the premises. Regulation 12 sets out how, where no agreement can be reached on the value of the premises, this is determined by a chartered surveyor who is chosen by the parties or specially appointed.
Regulations 13 and 14 stipulate how the compensation sum is to be paid to the land owner or into court. Under regulation 15 an easement is created on payment of the compensation sum.
Regulation 16 makes provision for notices served under these Regulations.
Regulation 17 provides that the applicant is to be responsible for the costs incurred by the land owner if the application is withdrawn or abandoned.
Notes:
[1]
2000 c.37.back
[2]
S.I. 1996/1022, amended by S.I. 1997/1965 and 1998/22.back
[3]
1996 c.23.back
[4]
S.I. 1987/821, amended by S.I. 1988/817, 1990/518, 1991/1227, 1997/177, 1999/1021, 2000/2918 and 2001/703.back
[5]
1998 c.38.back
ISBN
0 11090869 4
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© Crown copyright 2004 |
Prepared
18 February 2004
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