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Last updated: Sun 6 Jul 2014

Neighbour in talks over access to Nunney Church

The new owner of the Church Barn has held promising talks with a churchwarden, after blocking disabled access to Nunney Church last week.

Update: Churchwarden Hilary Allom had a long and productive talk with Mr Jacks this morning (Saturday 12 July). Apparently, Mr Jacks has apologised for any misunderstanding and offered a very generous solution to resolve access problems. Fingers crossed.

Nunney Church access

Mr Jacks has had a wooden gate installed that blocks disabled access to Nunney Church.

The long-established side access to Nunney Church and graveyard for the disabled, elderly and funerals has been blocked by the new owner of the church barn.

Mr Alistair Jacks has told his neighbours that he plans to install an electric gate at the bottom of the drive to – in his own words – “keep the peasants out”.

It is not clear whether this remark was intended to demonstrate a sense of humour, but he used the phrase repeatedly according to independent witnesses.

Local resident and former Parish Council member Owen Hillier was born in Nunney and can’t remember any time in his 90+ years that the drive was not in regularly used to access the church.

A wooden gate has now been placed against the existing church gate and blocked with eight screws.

He also has set out plans to build a 5 foot wall across the bottom of the lawn (replacing lavender beds) and replace the “terribly municipal” tarmac drive with a bendy gravel path. Work is expected to start as soon as this week.

Mr Jacks has not produced maps to scale nor applied for permission from Mendip District Council’s Planning department, as far as known.

Legal obligation

Nunney Church access

Visitors were baffled to be denied access to the church.

The church has a legal obligation to provide disabled access, which is now under threat.

This also means that anyone with mobility problems or prams wanting to attend weddings, funerals, concerts, exhibitions or religious services.

The side entrance has been used by disabled and elderly tourists and churchgoers as well as on occasion for weddings and funerals. At the most the drive is thought to be accessed on half a dozen occasions a normal day.

People arriving to see Visit Nunney’s current exhibition Nunney Scarecrows – Child labour and education in 19th century Nunney (open daily until Saturday 2 August) were baffled to find access to the church blocked.

Nunney Church access

Parish councillor Jeremy Gaunt with two visitors who are no longer able to visit Nunney Church.

Despite posters and a leaflet drop to promote a public consultation by Nunney Parish Council on the future of Nunney’s Market Place held in the church, people with mobility problems will no longer have access to our shared heritage, funerals, weddings, concerts, religious services, public consultations and exhibitions held in the church.

The diocese – the church’s administrative body that includes Nunney – has its own legal staff, who may now need to seek redress through the court to regain use of the drive to access and leave the church.

Church Barn Nunney

photo16Visitors to Visit Nunney’s current exhibition on child labour and education in Nunney found themselves unable to reach the church due to a new wooden gate that Mr Jacks has had installed right against the existing church gate.

According to a number of independent sources, Mr Jacks believes that he does not need planning permission to construct a wall and fence in an attempt to gain privacy. He lives in Hampstead, where there are 42 property companies registered against his address. He allegedly plans to use the church barn – formerly owned by Esther Devlin – as a weekend retreat.

Run-ins

The new owner has already had a number of run-ins with the churchwardens and others. Following a lunch with the vicar and a churchwarden, Mr Jacks accepted that access can be used on very special occasions, but only after he has been notified in writing on each separate occasion.

Mendip planning

The church barn was converted despite local objections.

The church barn was converted in 1985 despite objections from local councillors and residents. The property was converted by the owner of The George at Nunney at the time. He used to access the church barn using the back entrance at the pub.

When the church barn was sold, the deeds included ownership of the drive with a right of way for the people who live at Court Farm House (Ann and Richard Bethell’s former home, now owned by Mr & Mrs Bell) and at 1 Church Street (Brenda Eaton).

An added complication is that the remains of a hall or gatehouse built around 1500 are at the back of the church, opposite Court Farm House. Most of the remains of this building – which once had a minstrel’s gallery, according to old drawings – were reportedly sold to the United States.

Nunney Church

Regular access to Nunney Church is via a step flight of steps and a sloping path.

It is not the first challenge to the right of access to the church. Previous legal challenges required signed witness statements to testify that the drive has been used to access the church for over 20 years in order to show established right of way.

The access route is thought to have been used for centuries. The church itself is older than Nunney Castle, which was built after royal planning permission was granted in 1373.

Although the current south porch was added to the church in the 15th or early 16th century, according to leading architectural expert Sir Nikolaus Pevsner, the side entrance was the main entrance to the church until the church tower was built in 1475. After that, the side entrance continued to be used by the congregation because bellringers blocked the entrance in the church tower until a bellringers’ loft was installed.

The access route is, therefore, thought to have existed uninterrupted for at least 400 years. Members of the public have been physically able to use it since at least that time, and the evidence shows that they have done so.

Church Street barn conversion

The Church Barn

A so-called right of churchway is also thought to apply. A customary churchway is a right of way in favour of the parishioners to go to and from the parish church over the land of a private individual owner, and is enjoyed by the parishioners as a means of access to the parish church. Such a way, limited to the parishioners, can only exist by custom. (source: Halsbury’s Laws of England).

That applies to parishioners, however, and disabled or elderly tourists would require a highwY right of way.

A new legal challenge to establish right of access for visitors to the church and churchyard is likely to take at least three months and incur considerable cost to the diocese. If Mr Jacks does start work this week as planned, it is unlikely that the understaffed team at Mendip District Council’s Planning department will halt such work before it is completed.

Church Barn driveBased on similar legal cases, it is likely that a judge will consider whether the driveway is a customary churchway or a highway.

Even if lots of witnesses signed a statement saying that they used the driveway to access the church or churchyard, it matters whether this use is limited to parishioners. At present, anecdotal evidence suggests that tourists occasionally wander up the driveway too in order to take a look at the listed buildings (which, bizarrely, briefly included the church barn after conversion from 1984 to its delisting in 1991).

So the actual use of the driveway is currently not limited specifically to people visiting the church or churchyard, although that is its predominant use. Clearly, this is a separate issue about whether the driveway is a highway, a route that any member of the public has a right to access at any given time.

Given that is appears established that the driveway is privately owned, currently by Mr Jacks, it does not follow that anyone can simply wander up. As far as the highway use is concerned, it is a private driveway with right of access for the Bells. Mr Jacks appears to have every right to object to the general public strolling around his drive, it would appear (hey, we’re speculating here as non-legal folks) – as previous owners have done, judging by the ‘Private grounds and driveway – no public right of way’ signs at the bottom of the driveway.

The fact that the remains of the medieval hall are on the driveway is not a valid argument to gain general access; Nunney has over 30 listed structures, most of which are private property. It is still possible to challenge this, however, on the basis that the drive in reality has been in public use by tourists for over 20 years – despite the signs.

Church of All Saints, Nunney

Regular access to the church is up a flight of steps and a steep path.

The right of churchway is a different and separate matter, although the Highway Act 1835 states in section 5 that “the word ‘highways’ shall be understood to mean all roads, bridges … carriageways, cartways, horseways, bridleways, footways, causeways, churchways, and pavements.”

A churchway is not the same as a highway; it is specifically used to access the church and churchyard. It would help if maps could be found that show the drive marked as ‘Church Way’ or similar, but an established use specifically to access the church is usually more important.

Obviously, ‘the public’ could in theory use the drive to access the church and churchyard. In practice, visitors use the more obvious access at the front of the church. This access has a steep slope and a flight of steps at the bottom that prevents many frail and elderly residents from using it, including anyone in a wheelchair or mobility scooter.

An alternative wheelchair access would have to be created – at considerable expense – elsewhere in the church to meet legal obligations. The driveway next to the church barn has a much gentler slope than the churchyard, making it ideal for wheelchair users.

church0001Where it gets interesting is when the court will consider whether anyone should have the right to access and leave the church using the drive whenever they like. Whether they are tourists or visiting the grave of a loved one does not make much difference in this respect. Can access be limited to specific times, for example during church services, or does the public have access ‘as of right’?

It would seem absurd that any one individual could prevent people from putting flowers on graves or saying a quiet prayer during the church’s regular opening hours.

Case law is important here. ‘As of right’ means, in the words of Lord Bingham’s judgment in R v. City of Sunderland ex parte Beresford [2003] UKHL60, “not by force, nor stealth, nor the licence of the owner”. He added that: “A landowner may so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants’ use of the land is pursuant to his permission.”

“This may be done, for example, by excluding the inhabitants when the landowner wishes to use the land for his own purposes, or by excluding the inhabitants on occasional days: the landowner in this way asserts his right to exclude, and so makes plain that the inhabitants’ use on other occasions occurs because he does not choose on those occasions to exercise his right to exclude and so permits such use.”

photo13He quoted with approval the judgment in Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd (1992), where it was said that “where the user is of such amount and in such manner as would reasonably be regarded as being the assertion of a public right, the owner cannot stand by and ask that his inaction be ascribed to his good nature or his tolerance. If his position is to be that the user is by his leave and licence, he must do something to make the public aware of that fact so that they know that the route is being used by them only with his permission and not as of right.”

In other words, the owner must make clear that the public is only accessing the route because he allows them to do so; in the case of the Nunney driveway at the church barn, notices have made clear for years that there is no public right of way – but previous owners have not created physical barriers to prevent actual access. The fact that the church wall has a gate could be considered a limitation, but in this case it is not a gate that can be locked – or has ever been recorded as having been locked to prevent access.

Nunney All Saints Church

There is no known record of previous owners given permission to use the driveway to access the church and churchyard (mainly, it seems, because it didn’t occur to previous owners to stop the frail and elderly accessing graves and services).

0094By blocking access to the side entrance of the church Mr Jacks has set out his stall in the most aggressive and inconvenient way thinkable. Frail and elderly residents – who surely form a majority of the local congregation these days – face a struggle up a steep flight of steps, with those in wheelchairs and mobility scooters barred from visiting the graves of their late husband, wife or children.

Buying a property next to a church and then denying local residents access to that same building seems a very odd move indeed. It is akin to people moving in next to a theme park and then objecting to the noise. Will Mr Jacks attempt to silence the bellringers next?

It is always hard to predict the outcome of a legal challenge, but it seems likely that any challenge would confirm a right of churchway in this particular case. If Mr Jacks pushes ahead and tears up the tarmac to replace it with gravel in the next few weeks, it it unclear whether a court could force him to reinstate the tarmac to make it usable for wheelchair access again.

BBC Somerset radio’s Drivetime discussed the above situation on Wednesday 9 July, with Nunney resident Jeremy Gaunt as a guest.

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