The transfer of the Spinney Hill Maintained Areas (Open Spaces) is a matters solely for the homeowners to decide.  This can only be done at a General Meeting of the Spinney Hill (Oakham) Management Company Limited (SHMC).

The following concerns seem to amount to the necessity of obtaining a profession insurance survey. Previously, Chamonix/FirstPort provided an insurance policy statement that contained some very odd cover; for employee insurance, and building insurance for £337,000! We have neither. We must obtain insurance cover that reflects the real risks we could face.

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 common 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 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, given the increasing effects of climate change its longer-term adequacy should considered.  Can and should we insure against potential flooding risks? 

The EA said that that obstruction of flow in ‘our’ area would cause flooding north of Brooke Road. Would the insurer require regular checks and cleaning of the stream?  We share responsibility for watercourse maintenance with the properties on the north bank; how would that be managed?

The other concern related to Gwash is the condition of its trees.  In a pre-development survey in 2010 the Gwash trees were given 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 a major operation.  Can and should we insure against such risks?  What conditions would the insurer impose?

In this author’s opinion, Jeakins Weir, as owner of the land, currently bears the liabilities described above.  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 permits the general public to access and use our communal areas, so that Spinney Hill could not be considered a ‘closed community’. 

       To propose that giving the general public access to our communal spaces would prevent Spinney Hill being regarded as a closed community is not rational; the RCC will be adopting the development roads ,when they will then become public highways.  However, the prime concern is that covenant 1.9a has effectively made a nomansland of our communal areas.

Whether or not we own the areas, we cannot prevent the public from entering our spaces, nor can we regulate their behaviour.  Since the areas are private property, the RCC has no powers to regulate the areas.

          It may well be that extreme circumstances (say travellers setting up camp) will not arise and that any nuisances are minor. However, if something more concerning should occur, better we have full control.  In negotiating the transfer of the land, we should require that that this particular covenant be rescinded.  Our leverage is that we could refuse to take ownership – it would not be in JW’s interests to continue as landowner. This negotiating tactic would need to be carefully considered.

It is doubted that JW could transfer the land to third party; the land has no commercial, investment or development value - and retains certain liabilities.

Other liabilities (in addition to the Gwash problem)

Erosion, subsidence, diseased and/or fallen trees

Drainage and Subsoil structures

Protection of dangerous places

Responsibilities, liabilities, under the Landscape Management Plan.

If JW had to retain ownership of the land, and all of its liabilities, there remains to possibility that JW might decide to use the land for its own purposes. That would conflict with the provisions of the Transfer Deed. It should be a matter of negotatiation.

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.

          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.

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’. Given that the land is, and may continue to be, owned by JW it seems inappropriate that we should pay for the consequences of JW’s neglect, e.g. if a diseased tree fell on someone. This provision needs clarification.