Over a decade ago I described government's improper handling of public and private rights of way in Anguilla. The situation has not improved.
A public right of way, or road, differs from a
private right of way. A private right of
way is a right of passage given by one Parcel of land to another Parcel. It may be limited by width, eg 10 ft or 4 ft,
or by permitted usage, eg, by foot only or by all means including vehicles.
A public right of way is
generally created in one of two ways. It
may be acquired by the Crown by registration of a grant of easement form in
exchange for some consideration, or it may be created by law. For example, where the Crown at the request
of the landowner resurfaces a private road, the Roads Act provides that
the right of way automatically becomes a public road. Occasionally, the land below the public right of way is transferred to the Crown.
None of these methods
is in common use in Anguilla today. Most
of Anguilla’s public roads remain unregistered as such. The day is going to come when the problems we
have been storing up are going to explode. I hope that they can be corrected before that
happens at great cost to the Anguillian taxpayer.
Let us look at a practical
example of the problem. I have chosen a land
sub-division adjacent to where I live. This
is not because it is particularly special.
It is just that I know the persons and the circumstances involved. Also, if any “mistake” has been made, I am
not the one who suffered. If anything, I
and my family are the ones who benefited from the “mistake.” So, no one can say I am writing this out of
any sense of a private grievance. If
anything, I grieve for my neighbours who have been taken advantage of for my
benefit, unknowing as it was.
I am not an investigative
journalist striving to get at any truth.
I am simply a retired lawyer looking at a plan which purports to show
new rights created and old rights taken away.
Like most surveys, it was presumably prepared by a private surveyor at
the request of the relevant landowner and was intended to be approved by the
Land Development and Control Committee (the LDCC) and registered in the Lands
and Surveys Department.
I invite you to study the plan:
The late Daryl Richardson,
known to everyone in North Hill as “Mr D” has now passed on, leaving three
surviving heirs. His land, originally
Parcel 7, lay to the immediate west of my Parcel 293. You see it on the plan above divided into
Lots 1, 2, and 3, and “pcl 273.” My land,
Parcel 293, was originally a part of the Parcel that when subdivided produced Parcels
20, 186, 187, 202, and 293. These lie to
the south of the rights of way painted blue and red. Let us call it the Owen Estate.
In about 1982, Mr D, as
the owner of Parcel 7, together with the personal representative of the Owen
Estate, agreed on a mutual right of way running up their common boundary. It was to be a 10 ft right of way, one half
on the Owen Estate and one half on Mr D’s land.
That at the time was the minimum width for a private right of way
demanded by the LDCC and the Department of Lands and Surveys when land was being
subdivided. What happened in this
instance was the representative of the Owen Estate gave Mr D a five foot right
of way up the boundary of the Owen Estate.
In return, Mr D gave the Owen Estate a five foot right over his Parcel 7
from the North Hill Road up to the boundary line with Parcel 293, save for the
first part of the dogleg which was entirely on Parcel 183, then part of the
Owen Estate. This mutual right of way is
shown painted red on the plan above. As
I recall, I personally prepared the grant of easement forms and registered them
in the Land Registry.
Years passed and the right
of way worked well. Then, Mr D died. He left a Will giving Parcel 7 to his two
sons and a daughter. His daughter
inherited “Lot 1” with the house alongside the Road. His sons started building on Lots 2 and 3.
His Executor hired a land
surveyor to divide Parcel 7 and distribute it as provided in the Will. The surveyor knew that the LDCC now required
a 25 ft private access instead of the previous 10 ft when land was being
sub-divided. The result is the plan in
front of you. You can see that the surveyor
made provision for access westwards from my Parcel 293 down to the North Hill Road. He did this by creating a separate Parcel of
land which is coloured blue and labelled “pcl 267.”
The earlier private right
of way is coloured red. The proposed new
access route coloured blue, Parcel 267, starts in the west at the Public Road and
measures 26 feet wide heading east. At
some point it becomes 21 feet wide. All
of it is taken from Mr D’s Parcel 6. None
of it comes from the Owen Estate. The
surveyor appears to have ignored the mutual 5 ft rights of way. At any rate, he never discussed with me or
the Owen heirs the possibility of our agreeing to join in a mutual access
provision to make it 25 ft wide.
What is so irregular about
this proposed access? First, it goes
right up to my Parcel 293, though I was never offered a right of way over
it. I have no right to use it. If it was intended as a private right of way
for the benefit of Lot 3 to access the Main Road, it should have gone only up
to the western boundary of Lot 3. It should
not have gone past that to my boundary.
Alternatively, it may have
been intended to be part of a planned but unannounced public road. For Government to acquire it as a public road,
they must either ask Mr D’s Executor to grant it freely to the Crown or pay
compensation for it. From what I was
told, they did neither, so the road is still registered, so far as I know, in
the Executor’s name as private property.
As it is not registered as a public road, no adjoining landowner has the
right to use it along with other members of the public. It appears to be some sort of a private right
of way ending where it informally and irregularly joins my land, Parcel 293.
Second, it is not the
subject of mutual easements of right of way.
I cannot use any part of it as my private right of way. Proposed Parcel 267 is called a “ROW” or
right of way on the survey plan, but I am told it remains registered as private
property. Just seeing it on the survey plan
or on the Register does not give me a right to use it. That does not bother me as I am perfectly
content with the present registered 10 ft private right of way.
Third, the way the LDCC
has apparently insisted the plan be drawn, the intended private right of way
over Mr D’s land has been cut off into a separate Parcel 267, reducing the size
of Lots 1, 2, and 3. A right of way over
a Parcel of land is not created by subtracting it from the original land. The original dimension of the land should continue,
but with a private right created over the designated part of it. A public road, by contrast, can be a separate
parcel of land owned by the Crown, ie, the public. Looking at this plan, the clear intention was
to take a piece of Mr D’s estate and make provision for a subsequent public
road, not a private right of way.
Fourth, I have a problem
with the LDCC and the Surveys Department not insisting that land surveyors
consult with neighbours of Parcels of land they are surveying. That is common practice in other parts of the
West Indies. It would have been more
advantageous for the heirs of Mr D’s estate if they had negotiated with the
heirs of the Owen Estate to share the burden of either a private or a public
right of way or road. They would not
have lost so much land as they ended up doing.
And the rights of the public would have been increased.
Fifth, the new right of way has been made into a separate parcel, Parcel 267. It is in my view, completely and fundamentally wrong to create a separate Parcel of land to constitute a private right of way. A private right of is a contract between two or more landowners. They can agree to vary the right of way by further agreement. All rights of way are either a private right enjoyed either by one landowner over the land of another landowner or it may be a public right enjoyed by the public over land of a citizen. Or, or it may be created by transferring a part of private land to the Crown for use as a public road. Such a public road may or may not be registered as a separate Parcel. As I recall, there are examples of both in the Land Registry. Separating off a Parcel of land to create a private right of way makes it very difficult and very expensive for the owners of the right of way to agree to alter the location or dimension of the right of way.
Creating a separate parcel
but leaving it indefinitely in the name of the landowner, might be a device to
block off the land so that hopefully, one day, through usage, the government
can acquire it freely, without having to pay anybody for taking it for the
public use or taking the trouble to negotiate for a grant for public use.
What is wrong with that,
you may ask? The normal practice in the
Commonwealth Caribbean is for governments to negotiate with private landowners to
acquire the right for the public to pass over their land. This is accomplished either by government
paying the landowner for the public right of way, or asking the landowner to
donate it for public use, or using public money to repair the right of way at
the request of the owner. It is only
fair to all Anguillians that these proper procedures be followed. It would be quite wrong, if indeed that is
what is happening, for government to cut off private land slyly and
surreptitiously to convert it in later years into a public road without any
discussion with the landowners. Or, am I
being paranoid?
Finally, what was the use
of starting the proposed new roadway, Parcel 267, over Lot 1? This new road would ignore the existing dogleg
right of way over Parcel 186. Was it done
just to straighten up the right of way? That
makes no sense to me. The existing right
of way passed over the land that had clearly been designated and left by the
Owens for the purpose of access from the road to all the lands to the east. It was sufficient for use by the largest
truck.
The narrow strip of land that
you can see forming the western bit of Parcel 186 (probably about 30 ft wide)
connecting it to the North Hill Road is not capable of being used for any other
purpose than the access road it was intended for. In my view it was completely unnecessary to
have taken 26 feet out of the south of Mr D’s daughter’s garden (up against her
house), while abandoning the existing right of way provision just a few dozen
feet away!
The private surveyors tell
me that there is nothing they can do about this. They say it has been settled on by the LDCC. They tell me that any survey for a
subdivision will not be approved by the LDCC or the Director of Surveys if
there is no access provided for other surrounding lands. They say that the LDCC has told them they
must make provision for access out of the land they are surveying if their
proposed survey is to be approved. If
this is so, which I doubt, the surveyors are, in effect, blackmailed into
forcing their clients to give up some of their land for public access if their
survey is going to be approved and they are to get their survey fee paid.
Others tell me that the
LDCC has made no such ruling. The LDCC
has merely mandated that, when a sub-division is being made, there must be
access for all resulting lots. The
Committee does not apparently care how it is done. They would no doubt prefer the surveyors to
assist their clients in negotiating with the neighbours to get them to agree on
what is fair to all, a mutual right of way along their joint boundaries. If they cannot agree on this within a
reasonable time, then the right of way provision might have to be imposed on
one person’s land. But that would not be
the preference of the LDCC. It is perhaps
simply that the land surveyors do not wish to be bothered to contact all
surrounding landowners and to discuss and mediate an agreed mutual 25 ft right
of way.
I don’t know what to make
of this confused situation. If rights of
way continue to be mis-handled in this way, someone (probably the unsuspecting
Anguillian public) will one day have to pay.
A
revised version of an article previously published on 7 December 2007: https://corruptionfreeanguilla.blogspot.com/2007/12/acces
