Grave Injustice at Cross Hands

By Roger Warren Evans, Barrister-at-law

roger@warrenevans.net

1. Ty Newydd residents know that, in the process of the original 1980s sale of their houses by the National Coal Board, a grave wrong was done.  The houses were sold without giving their purchasers the necessary rights to maintain and repair the roadways serving their properties.

2. It is widely understood that the purchase of “real property” (land or buildings) is a complicated matter.  If you are to pay a price for the right to occupy a piece or land or a building, it is vital that you have the necessary “bundle of other rights” to enable you to make use of the property for your planned purposes.  It is no good having to go cap-in-hand to somebody else for permission to get something vital done: your bundle-of-rights must give you the legally-enforceable right to do it, or else the property is almost useless to you.

3. In addition to all necessary rights of way to get to and from the property, and the traditional right to drain the property, modern life now requires that a house comes with other rights attached – a right to run electricity cables to the house, to arrange for a gas supply to be installed, for a water supply main to be connected, for telephone links to be run, now TV cables, perhaps even Internet connections.  And the bundle-of-rights must also enable the purchaser to have those links repaired, where they run through or over somebody else’s land.

4. For most properties, the position is greatly simplified because they are located adjacent to a public highway, and it is common for all these services to be run through a public highway.  That means that the occupier does not need any right over other private land, to enable a connection to be made: the connections can be made direct from public property to the individual plot, without going through any other private property.

5. But if your property is on a roadway which is not an adopted highway (as at Ty Newydd), the problem is more complicated.  The occupiers must still fall back on their private-law bundle-of-rights.  And it is vital that the bundle should be complete, covering all eventualities.

6. The problem at Ty Newydd was that the bundle-of-rights was defective. 

·        Yes: there were all the necessary rights of way.

·        Yes: there were all the necessary rights to obtain water, and to maintain the water mains;

·        Yes: there were all necessary drainage rights, and the rights to maintain those drainage pipes;

·        Yes: there were all the necessary rights for electricity provision and to maintain the conduits and wires;

·        Yes: there were all the necessary rights to obtain gas supplies, and to maintain the piping, conduits. 

7. Have you noticed what is missing?   You have.  There was no right to go onto anyone else’s land to maintain the roads.  And apart from the stretch in front of your own property, all those roads were owned by other people.

8. The bundle-of-rights did say something about the subject, but it was entirely inconclusive.  The conveyances declared that –

“the persons from time to time enjoying the benefit of the rights hereby granted shall contribute a portion (to be assessed according to use) of the cost of inspecting, maintaining and renewing the said lane and the said pipes, wires, conduits and drains”.    

9. But what use was that, when nobody had the right to do the work in the first place?   The position is that still, to this day, nobody has the right to do the work.   And there was a further defect: even if somebody had been able to do the work, the bundle-of-rights did not provide for any means of deciding, as a practical matter, what any particular contribution should be!  How on earth could one decide contributions on the basis of a “person’s…use..of the road” – or the gas mains, or the foul drainage system?  

10.    The conveyancing of these properties was a dog’s dinner.  But it was not merely a mess.  It contained a terrifying black hole, into which all the residents have fallen: there was nobody whatever designated with either the power or the duty to maintain those roads, and there was certainly no effective cost-recovery system included, which could have fairly apportioned all those various costs.

11.    Now: these defects are simple enough to see.  Laymen might be forgiven for switching-off, and leaving such matters to Solicitors – and all the purchasers at Ty Newydd had their own Solicitors, appointed by themselves, and not imposed in any sense by the Coal Board.  But the glaring gaps in the bundle-of-rights are clear to any lawyer.  Why is that, throughout the 1980s, not a single local solicitor, and not a single local Building Society manager, spotted the gaps?  I cannot answer that question.   But I do say that, on the basis of the discussions that I have already had with a number of the original purchasers, I can be sure that, if they had been told that the properties came “with gigantic road-construction bills attached”, they would never have bought in the first place, and would have preferred to retain their status as protected tenants.

12.    Finally, what of the argument (put forward by National Assembly officials) that the ex-miners “got what they paid for?”  That the road was obviously unadopted, and that the prices paid for these houses properly reflected the fact that many more thousands of pounds would be payable in addition, to build the roads?  I cannot give a definitive answer to that question, but my nose tells that it is not true.  To answer it would require considerable local historical research, even though only 25 years or so have elapsed.  And it may well be that those attending this meeting can make important contributions to that research.

13.    But one can also say with confidence that, by concealing the true highway situation in this way, and “selling a defective bundle-of-rights”, cleverly concealed to deceive even local Solicitors, the NCB made much more money from these sales than they would otherwise have done.

15.    This catalogue of assignments would simply be too burdensome for any private process, funded by the residents, to undertake.  The cost could easily amount to £30,000 per property.  That demonstrates the sheer impossibility of finding a “private solution” to this “public problem”.

16. This awful problem was caused by the deceitfulness of a major public body, by sharp practice perpetrated by the National Coal Board upon its faithful employees.  It represents a stain upon the good name of public service.  And it for either the UK Government or the National Assembly for Wales to make amends, to pay for the construction and adoption of this road, in cooperation with the local high authority.