Content

Exemption from publication: There are
confidential appendices to this report, which are exempt by virtue
of paragraph 3 of Schedule 12A of Part 1 of Schedule 12a of the
Local Government Act 1972 because they contain information relating
to the financial or business affairs of any particular person
(including the authority holding that information).

To authorise the Council to instigate Court proceedings against the
owners of Butterfly Cottage to recover and enforce the
reinstatement of the area of common land encroached by Butterfly
Cottage.

Reasons for the decision

The owners of Butterfly Cottage have
unlawfully cleared vegetation and fenced off an area of common land
to the east of their property – in effect, incorporating the
area into their garden. In addition, they have installed 5
ornamental lamp columns along the edge of the bridleway, also on
common land, frequently block the bridleway with their vehicles and
undertook resurfacing of the bridleway, and a layby they had
created to the immediate south of the bridleway, with gravel
unsuitable for the users of bridleways (particularly horses).

The Council has duties and powers to protect common land as a
result of its role as the commons registration authority. In
addition, the Council has powers in its role as highways authority
and as local authority. The Council also has byelaws for
Littleworth Common, which have been breached and can act as an
enforcing authority. The Council is also the Landowner of part of
the land incorporated into the garden of Butterfly Cottage by
erection of the fence and can seek a possession order for its
land.

The Council engaged an independent land surveyor to provide a
report to determine the extent of encroachment and define the
boundaries between the registered title of Butterfly Cottage and
that of the area of common land.

Correspondence and discussions, including site meetings, have been
undertaken with the owners of Butterfly Cottage over the last three
years, conveying the unlawful actions that they have carried out
and the steps required to resolve the issues.

These discussions have not resulted in the owners of Butterfly
Cottage remedying their unlawful actions and in fact some
structures have been subsequently placed on the area of common land
despite the Council advising against this. As a result, the Council
is obliged to proceed down the route of litigation to resolve the
matters.

A Pre-Action Protocol letter was served on the owners of Butterfly
Cottage giving them 28 days to respond otherwise the Council would
commence litigation. No reply was received within the 28 day
period, although a response came a few days later. This response
refuted the claims and asked for the Council not to pursue Court
action.

The Council reiterated its position as set out in the Pre-Action
Protocol letter and gave a further 14 days for the owners to reply.
This expired on. The owners of Butterfly Cottage requested that the
matter is dealt with by arbitration. The Council considered this
and received legal advice that statutory matters could not
appropriately be dealt with by arbitration. The relevant
legislation i.e. Commons Act 2006 and Highways Act 1980 envisages
litigation. The Council replied to the owners on 24 May 2024 to
confirm the Council will be proceeding with litigation.

Alternative options considered

Common land is protected by legislation and
the enclosure of common land is prohibited other than for
exceptional circumstances. In addition, the common land and
bridleway immediately adjacent to the south of Butterfly Cottage is
also designated as SSSI (Site of Special Scientific Interest) and
is heavily protected by legislation. In view of the lack of
progress in getting the owners to remedy their unlawful actions by
negotiation, the Council has no option but to pursue a resolution
through litigation.