07 December, 2007

Rights of Way

Rights of Way. We have a problem in Anguilla with rights of way. The genesis of the problem is that most existing rights of way were deliberately left unregistered when the land registration project of 1974-1975 was completed. Very few private rights of way were registered. Not even all public rights of way were registered. They were considered to be too controversial.

Most rights of way, whether private or public, in the early days were footpaths. There were few wheeled vehicles in Anguilla in the nineteenth and early twentieth centuries. Many of these original rights of way were recorded during the 1975 Cadastral survey of the island as being four feet wide. That was the traditional width of a right of way even in the early twentieth century.

Now that everyone in the twenty first century in Anguilla uses cars, that width is inadequate. Starting in the 1980s, land owners were encouraged by the Survey Department to increase the width of rights of way to ten feet. Ten feet was the recommended width until recent years. It happened to me. My mother gave me her piece of her father’s land at North Hill in 1982. We created our access road with the cooperation of our neighbour. It was recorded as being ten feet wide. We negotiated with him. We gave him a five foot right over our family land. In return, he gave us five feet over his. This made the required total of ten feet demanded by the Land Registry. It is to this day the only access to our home. It remains a private right of way, and we can block anyone else from using it. None of our neighbours has the right to use this road without our permission.

Ten feet is no longer considered by modern planners to be sufficient. They prefer a minimum of twenty feet. They would ask for forty feet if they could get it. The problem has always been how to persuade landowners to give up such a considerable portion of their land to facilitate members of the public who want to cross over.

The Planning Department is not interested in private rights of way. They are only interested in public rights of way. They would, ideally, like to turn every private right of way into a public road.

One legal way to do this is for the Crown to acquire the land, and to pay compensation for its acquisition. This takes private land and turns it into an acceptably wide public right of way. Any member of the public can use it. That has always been unpopular in Anguilla and is seldom followed.

Another way to widen a right of way is to persuade the landowners to voluntarily widen the private rights of way over their land. That is hard to do most of the time. It requires negotiation, which almost suggests confrontation. Anguillians will do anything to avoid confrontation if they can.

It becomes much easier when the landowner is dividing up his land for sale or distribution to heirs. Then, he is at his most vulnerable. He needs planning permission to subdivide his land. The Planning Department can ask something in return. The Department can put pressure on him to agree to make a wider than necessary road allocation. If he refuses, he faces his application for subdivision being refused or held up. He is not encouraged to negotiate a joint road with his neighbour. He is simply told that he is obliged to make the entire road provision out of his land. This is done even though his neighbour would have loved discussing with him to make a common private road for the use of both their lands.

Acquisition or forced consent, those are two preferred methods in Anguilla.

There is another way. It is the way utilized in most of the rest of the world. I submit to you that it is the proper way. It remains to me a great pity that it is ignored by the authorities in Anguilla. It would, in our scenario, involve the Planning Department persuading the landowner to discuss the issue of a common right of way with his neighbour. Perhaps they can each devote ten feet along their boundary to create a common twenty foot wide roadway for the use of both their lands? This is the generally acceptable way for a right of way to be created all over the world. I own my land and you own your land. We each give each other a right to pass and re-pass over our land. This creates a “right of way”. This is entirely different from a “public road”. A public road can only be created by my giving the public a right to use my land as a roadway, or the government purchasing a right of way over it, or if I invite the government to spend public money on improving my private road. Then, it turns into a public road that anyone can use.

What in my opinion is not acceptable is to force the landowner, who wishes to sub-divide his land, to set aside a strip for, say, a twenty foot wide right of way along one of his boundaries. He is told he must permit his surveyor to cut off a twenty foot wide strip of land running the full length of his land. It is then registered in the Land Registry as “ROW”. This presumably stands for “right of way”. “Presumably” because no person has been given any right to use this strip as an access. It is just a strip of land labeled “right of way”. Such a provision of land is not a right of way that belongs to any person at all. It is just a piece of my land labeled “right of way”.

It is quite simply an extortion committed on a vulnerable private citizen by a powerful government department.

It is a fraud in that it unnecessarily extorts land from usually poor and uninformed persons. It penalizes these vulnerable persons without creating any public benefit of any kind. This fraudulent device actually prevents Anguillian landowners from doing the right thing and creating genuine rights of way over their private lands.

I have been coming across more and more examples of it recently.

I wish to discuss this in more detail over the coming days.

Have you any experience you would like to share about the Planning Department obliging you to do something unreasonable about a right of way over your land? Tell us about it.

1 comment:

  1. The role of planning should be to assist us in making good decisions, not forcing us into giving up our lands. Land owners should be consulted where ever lands bordering theirs are sub divided. These people act as if they are devoid of intelligence or just plain brain dead. If we continue to give up land like that sooner or later they will come up with a plan to convert it into public access ROWs. This is quite alarming and should be addressed but then again who is willing to stand up and fight them? Consequences - try to build later and they deny or hold up your permit?


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