Decision

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.