Ownership of the Maintained Areas.
Our starting point is to establish exactly what maintenance the SHMC is obliged to carry out now. That is specified in our Transfer Deed (see link below). Having established that, we then need to determine what obligations/ liabilities/benefits are entailed in owning the land. In the Transfer Deed JW makes it very clear that they own the land - and therefore is responsible for those entailed liabilities (which we would take on should we accept title to the land). In our deliberations the balance between the benefits and liabilities will be the key.
Link to the SHMC's present maintenance obligations
It may seem commonsense that we should own the land that we are obliged to maintain. However, as your solicitor did in the purchase of your home, it is an essential practice to carry out searches into the status of the land, to ensure there are no hidden problems.
In Spinney Hill there are two immediate concerns;
1. The maintenance of the Gwash stream, which is a common law liability of the LAND OWNER, and
2. The Section 106 Agreement covenant that, on transfer of the land from the developer to ANY new owner, the general public has right of access to and use of the Open Spaces.
There are other possible liabilities that are entailed in land ownership but these two are the most problematic.
Gwash stream.
The Environment Agency did carry out an inspection of the stream in 2020 and again more recently and found it was adequate for purpose. However, the EA said that that obstruction of flow in ‘our’ area would cause flooding north of Brooke Road. Should we insure against such a risk? Would the insurer require regular checks and cleaning of the stream? Land owners on the north bank share responsibility for watercourse maintenance; how would that be managed?
The other concern related to the Gwash is the condition of its trees. A pre-development survey in 2010 gave the Gwash trees a life expectancy of ten years. In 2022 one of the largest trees fell, for no obvious reason. In the event of a major storm many of the trees could fall and the cleanup would be an expensive operation. Can and should we insure against such risks? What conditions would the insurer impose?
There seems to be no doubt that Jeakins Weir, as owner of the land, currently bears the liabilities described above and others. On transfer of the land those liabilities would pass on to the new owner.
The Section 106 Agreement.
The 2013 agreement between JW and the RCC has in its First Schedule, ‘Transfer of Open Spaces’, Sect. 1.9, restrictive covenants that come into effect when the land is transferred. Covenant 1.9a is a ‘restriction preventing use for any other purpose than public open space.’ The RCC Planning Dept has stated that this covenant gives the general public the right to access and use our communal areas, so that Spinney Hill could not be considered a ‘closed community’.
Even if the areas were to remain solely for our own use, the RCC will adopt the development roads which will then become public highways, which the public can traverse at will. That would not be 'closed community.' And there is no stipulation that the allotments (if they ever appear) will be reserved for Spinney Hill owners.
However, the prime concern is that covenant 1.9a has effectively made a nomansland of our communal areas.
Irrespective of to whom JW transfers the areas, the SHMC cannot prevent the public from entering our communal spaces, nor can we regulate their behaviour. It may well be that extreme circumstances (say travellers setting up camp) will not arise and that any nuisances are minor. However, in such a case, since there would seem to be a legal right to enter on the land, with no restrictions or qualifications, the landowner would have no remedy, save in the case of criminal offences or activities that would warrant a civil action.
The current RCC Antisocial Behaviour policy is a cumulative process and does not provide any immediate resolution and anyway would not be a remedy for someone peacefully occupying our land. Since the areas remain private property, the RCC has no powers to regulate.
Well-maintained communal areas will enhance the value of our homes. It could be that an incident on those areas involving a badly behaved public, could do the opposite - no one wanting to buy a property in a trouble spot.
In negotiating the transfer of the land to the SHMC we should require that that this particular covenant be rescinded. There is legal precedence*. Our leverage is that we could refuse to take ownership – it would not be in JW’s interests to continue as landowner. The RCC have stated that, should JW seek further development on the communal spaces, they would consider an application 'on its own merits'. To grant further development would conflict with the existing Planning Permission and the spirit of covenant 1.9b ,which prohibits the use of the areas for trade or business. However, if the RCC wont give an assurance that JWs application would be immediately refused, it is a situation we should prepare for.
It is unlikely that a third party would take on the land because it has no commercial, investment or development value - and retains certain liabilities. As we all now know, such a transfer would have no effect on our maintenance liabilities.
Liabilities entailed in Sect. 106
(Note: Four of the covenants in Schedule 1, Sect 1.9, refer directly to maintenance liabilities)
The RCC has no doubt that additional liabilities come with land. In 2025 they told me:
'The liability under the agreement rests with the landowner until transferred, in which case the obligations are transferred to the new owner. If the resident’s group do not take a transfer the liability will remain with the current owners . . . . . It is usual when residents groups or Parish Councils take a transfer of POS to have a proper inspection of the site carried out prior to transfer to check for any defects and ensure it is being transferred in good and proper condition. The residents group should take independent advice on this prior to completing the transfer of the land.'
Link to more detailed Sect 106
OTHER POSSIBLE LAND OWNER'S LIABILITIES :
Erosion, subsidence,
Diseased and/or fallen trees
Drainage and Subsoil structures
Protection of dangerous places
Responsibilities, liabilities, under the Landscape Management Plan
Fly tipping
Abandoned vehicles
The Land Management Plan.
The LMP is a 2013 agreement between JW and the RCC which sets out in great detail how the Maintained Areas should be developed and maintained. The plan was a condition of the Planning Permission granted after appeal and, it is mooted, lasts in perpetuity subject to review and revision every five years.
Given that the plan can be revised, the conditions in the agreement can be viewed as at least flexible. However, neither JW nor the RCC have carried out some clear responsibilities, by neglect rather than design perhaps. The plan itself is written in Alice-in-Wonderland terms that were never likely to be realised.
The LMP has a long section (2.15) dealing with diseased pre-development trees; the section makes it clear that the trees were JW's responsibility. There was concern about public safety, should the trees remain. The RCC's 'arboreal' advisor supported removal of the trees. The section concludes with the decision that 'monitoring and removal of diseased trees weill be carried out by Jeakins Weir Ltd in liaison with Rutland County Council.' That didn't happen. Unfortunately, because of the misunderstanding of where the responsibility for the trees lies, the SHMC has carried out work on them. Hopefully that has not created a precedence.
This author’s conclusion is that the SHMC does not have any liabilities under the plan, even if it adopts the land. That would be subject to a legal opinion, of course. A factor that may limit the effect of the LMP is that our Transfer Deeds permit the Company to alter the 'scope' of maintenance. It can also add appropriate maintenance where needed.
Public Liability Insurance.
Under the Transfer Deed, the SHMC has to provide ‘insurance against the liability of the Manager and the Communal Landowner to third parties and against such risks and in such amount as the Manager shall think fit having regard to the use of the Maintained Areas by both the Owners and the public at large’. This seems to have been written to protect JW, while they own the land. it seems unfair that we should pay for the consequences of JW’s neglect, e.g. if a diseased tree fell on someone. This provision needs clarification.
*The arbitrary imposition of public access to our communal areas, in this author's opinion, is a invalid planning obligation. There are Supreme Court decisions overturning such planning obligations.The RCC was challenged on this point and predictably they rejected the proposition. In February I submitted the matter to the Local Government Ombudsman, which will arbitrate challenges to Sect 106. It is yet to be allocated! Given their workload an adjudication will be some distance away.
If any Member would like to see the argument I submitted to the Ombudsman I will provide a PDF copy.