THE BCH ARCHIVE

LOCAL HISTORY FOR

BIRTSMORTON

CASTLEMORTON

HOLLYBUSH

And The Surrounding District

Fir Tree Cottage  Page 4

A dispute over access.

Anyone wanting to have a legal right to cross another person's land to access their own property must either have permission from the land owner (usually by a  Deed of Grant), or must prove that access has been established by custom (proof of access for at least the last 20 years -  known as Prescriptive Rights).  


Where common land is concerned, there is right of access by foot or by horse, but not by wheeled vehicle. There is nothing to stop a person or the horse from carrying building materials.


Persons exercising their commoners rights of grazing are permitted to take vehicles onto common land, but only to the extent that is necessary – for example to remove a dead animal.


I am grateful to Tim and Rose Cameron for giving me access to their Court papers and archive of newspapers cuttings.


An undated article (about 1980) in the Malvern Gazette records that Tim Cameron applied to the Conservators for a wayleave to drive a vehicle up the track to Fir Tree Cottage and this had been refused. Prior to that he had driven to the property and in other papers he claims that he did not know that the old right of access had lapsed (see below) and believed he had a right of vehicular access. He also held the view that it was unreasonable for the Conservators to obstruct an individual from getting to their rateable property.


A headline article in the Malvern Gazette, 18 September 1980, is titled Farmer is ready to go to prison'. The article sets out that Mr Cameron had carried out work on the 170 metre track leading to the cottage, rotovating the soil to make the track more level and consequently, he says, safer to drive along. He was prosecuted by the Conservators at Upton Magistrates Court in 1978, charged with making a new road. He denied this, saying he had merely improved an existing road. His claim was supported by Fred Brewer, former tenant of the cottage until 1955, who claimed he had made the road and this was the main access to the cottage and had driven his motorcycle and sidecar along the track and that other vehicles used it. (Roger Jakeman remember this, but recalls that Fred could only make it all the way up in good weather and usually left his combination half way up). Cameron was fined £10. He appealed and lost as he was found to have lost the prescriptive rights enjoyed by Fred Brewer which had lapsed since their use was exercised. He paid £1000 appeal costs and a further £88 in settlement of any loss incurred by the Conservators and was asked for an undertaking that he would restore the track to its original condition within two months of 11 July 1979. Four months later he was informed that Malvern Hills Conservators had applied for an injuction to prevent him prevent him driving along the track to the cottage. He contended that as a grazier with commoners rights, it was usual practice for farmers to be allowed to drive on the common, for example, to be able to take feed to and from their stock. Castlemorton Parish Council supported Mr Cameron and their chairman, Brian Smith, wrote “The Conservators obviously feel they are acting within their powers, but this council seriously questions their motives and their interpretation of the law. The affair has aroused a good deal of interest locally because the outcome could seriously affect the rights and livelihood of many other people who live on the common.” Mr Cameron was refusing to a compromise from the Conservators that he would acknowledge that there was no vehicular right of access across the common to Fir Tree Cottage.  

An undated newspaper article clarifies the matter further. The 'new' road was constructed between 17 April and 1 June and was alleged to follow the line of an old sheep track which had been widened some years ago to approximately 6ft to make fire break.


Nigel Recorden (Mr Cameron's Solicitor) wrote to the Malvern Gazette 9 October 1980 pointing out that he had only paid costs on one of the three cases. (The other two were for lighting fires and digging a ditch) The Conservators had paid £162 towards that case and all the costs in the other two cases. He regarded the Conservators action as an irresponsible use of ratepayers' money.


On 10 October 1980 Mr Cameron wrote to the Malvern Gazette citing that on 1 October at the Commons Committee of the Conservators it had been conceded that it was lawful for a commoner to drive vehicles wherever he wishes on the Common for the specific purpose of tending his animals and he was thankful that he could now drive to Fir Tree Cottage for the purpose. Advice was that as Fir Tree Cottage only had grazing rights for 5 sheep, it was really not necessary to use a vehicle to exercise these commoner's rights and certainly formed no basis for vehicular access.


He wrote further to the Gazette on 17th October that he had always sought a common sense outcome with the Conservators and that he had never sought to attack them. If he were not allowed to restore the cottage at all, then the ground, as part of his agricultural holding would have to be put to some economic use which could mean chicken, pig or any other type of livestock shelter and store.


The Conservators had offered to settle the matter and refrain from seeking an enforcement order (to prohibit vehicular access) providing Mr Cameron would sign an unconditional acceptance that there was no vehicular access. He refused to do this because he felt that 'unconditional' would mean accepting that as a person with common rights he would be agreeing that he had no rights in any circumstances to drive across the common – which he regarded as untrue and potentially prejudicial to the interests of other commoners.


The Conservators sent one of their staff, Bert Loader, with a tractor and trailer of rocks, to deposit on the track to block access. The Camerons lay down on the ground behind it, making it impossible for him to offload, so he departed. Later, a few boulders were deposited and promptly moved to one side, where they remain sinking into the ground.


The 1995 Malvern Hills Act gave the Conservators the power to grant easements and the power to authorise the construction of access tracks to properties. Eventually agreement was reached with the new Director of the Conservators, Ian Rowat, and a purchase of a Deed of Grant for the right to vehicular access was granted for £5000 in 2005.


Further letters in 2004 dealt with the size and specification for the stone-based track.


The dispute over planning permission


12 February 1999, Malvern Gazette: “A couple hoping to extend their 250 year old cottage at Swinyard Hill, Castlemorton faced a string of objections from Malvern Hills Conservators. Fir Tree Cottage dates from about 1750 and is described by Malvern architect Michael Peach as 'an interesting example of vernacular architecture'. Its owners, Roger Bates and Jo Cameron moved in six years ago, although Mr Peach carried out a survey of the building for its previous owner 15 years earlier. He said 'It's quite a substantial house. I know of only four other like it in Herefordshire, Worcestershire and Shropshire. It was built in three bays, built of stone with oak frames inside that support the roof. This one is particularly interesting because it is all green granite, which is quite rare.' The owners want to build a single storey extension with a sloping roof of reclaimed tiles on the site of the old scullery. But the Conservators' wayleaves and planning committee objected to their plan, saying it would be 'unsymapthetic development, which would double the size of the property and detract from the character of the landscape'. The committee also thought there would be inadequate provision for vehicular access, parking, landscaping and services, saying there was no right of vehicular access over Castlemorton Common for the carriage of building materials. A further objection was that the property was surrounded by an Area of Outstanding Natural Beauty and was also a Site of Special Scientific Interest. Mr Bates, a former landscape gardener and enthusiastic naturalist, belongs to the RSPB, Worcestershire Nature Conservation Trust and Worcester Reptile and Amphibian Group. He said: 'What the Conservators have overlooked is that we simply want to reinstate what was there before. A previous owner had knocked down the scullery and bakery oven. There are still visible signs of where the walls were and the original stone is here on site, several tons of it. We want to use the same materials and we think it will add to the visual attraction of the cottage.' The Brewer family who lived there in the 1950's, had always had vehicular access to the cottage, with regular bread and coal deliveries, he said. All the necessary services were already there, with electricity, septic tank and spring water from a well. 'I don't know what the reference to landscaping means. The garden has been neglected for 30 years and I am a very keen gardener', he said.”



One of the Conseravors, Mr P A Weller, wrote to Malvern Hills District Council saying that he been given “totally misleading information on both the location and nature of this proposal” and that having visited the site was clear that the Conservators' objections were “almost entirely nonsensical”. The owners shod be congratulated, not discouraged or threatened.


A letter from Richard Phillpots, published in the Gazette on 5th March, added that the Conservators had made life difficult by depositing stones at the end of the track to prevent access.


In reply, the Conservators issued a public apology in the Malvern Gazette on 19 March 1999: “Malvern Hills Conservators have been advised to make site visits before commenting on future planning application. The recommendation follows what was described as 'a public relations disaster' over Fir Tree Cottage at Swinyard Hill, Castlemorton. Conservator, Peter Weller, said he had been to look at the cottage and felt he should apologise to the owners for the Board's objections to their extension plans, although these have been granted approval by the District Council. He believed most members had not been aware of the true position of the site, its long history, the minute physical improvements planned or the disposition of the owners. 'In fact, the 250 year old cottage was beautifully placed, beautifully landscaped and beautifully conserved and the Board should be praising it,' he said. 'We must learn the lessons from this public relations disaster. We have manifestly made a mistake and we must learn to have a site meeting before commenting in future', he said. His colleague, Pat Merrick, agreed, saying: 'One bad decision carries more weight than 10 good ones'. But the chairman of the wayleaves and planning, Pat Raven felt members had been right to register their objections to the extension plans. 'The majority had quite strong feelings about this', she said. Board chairman Brian Wilcock said he did not think a possible error on one minor planning application had brought the Board into disrepute. He pointed out that a different approach was being taken to a recent application to extend Little Orchard, Golden Valley, Castlemorton. Director designate Ian Rowat will look at the site and report back with any relevant comments”.