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APC > Access and Rights > Flashcards

Access and Rights Flashcards

1
Q

When working at Stand Close, what legislation was this agreed under?

A

Digital Economy Act 2017

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2
Q

At Stand Close, were there any other ways you could document a right of access?

A

Yes, using a Wayleave agreement or an Easement

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3
Q

What was the benefit at Stand Close to agreeing a new lease?

A

To allow my client to exercise their code rights.

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4
Q

What are the code rights?

A

Refers to Para 3 of the code
- to install electronic communications apparatus on, under or over land
- to keep installed electronic communications apparatus which is on, under or over land
- to carry out works on the land for or in connection with the installation of electronic communications apparatus which is on, under or over land
- to carry out any works on the land for or in connection with the maintenance, adjustment, alteration, repair, upgrading or operation of electronic communications apparatus which is on, under or over the land or elsewhere
- to enter the land to inspect, maintain, adjust, alter, repair, upgrade or operate any electronic communications apparatus which is on, under or over land or elsewhere
- to connect to a power supply
- to interfere with or obstruct a means of access to or from the land (whether or not any electronic communications apparatus is on, under or over the land)
- to lop or cut back, or require another person to lop or cut back, any tree or other vegetation that interferes or will or may interfere with electronic communications apparatus

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5
Q

At Stand Close, are there any other ways to agree an access agreement.

A

Yes, an easement or wayleave but that would not have been appropriate in this case.

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6
Q

Do you need statutory rights to exercise an easement?

A

No, this can be agreed between parties

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7
Q

What do you need for an easement?

A

Dominant and servient land and a right across it

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8
Q

What is dominant and servient land?

A

A right benefitting a piece of land (known as dominant tenement) that is enjoyed over land owned by someone else (servient tenement). E.g. use of a path.

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9
Q

At Brownwydd, a residential property which had encroached a right of access. How did you know it had encroached?

A

The proposed works would have encroached into the right of access. I reviewed the long leasehold agreement which clearly expressed the right of access around the perimeter of the building.

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10
Q

At Bronwydd, which element of the lease did you refer to?

A

It was reviewing the lease plans and the lease particulars which explained the different colours on the plans.

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11
Q

Who were you acting for at Bronwydd?

A

The long leaseholder

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12
Q

How did your instruction work at Bronwydd?

A

Client had concerns over the works being proposed and instructed me to advise on the matter to find an amicable solution.

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13
Q

What advice did you give at Bronwydd?

A

My advice was to ensure that both parties were aware of the requirements to maintain an access track. I advised the other party that the works could take place but a fence would need to be put in place to ensure that the access track was clearly specified in accordance with the agreement.

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14
Q

At Cotgrave, you advised your client on the most suitable route through land. What were you considering when advising on the route?

A

The route which held the least disturbance to the landowner and also with a view to ensuring that compensation was kept to a minimum in the heads of claim.

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15
Q

At Cotgrave, what are the 4 claims in a heads of claim?

A

Land taken, severance, injurious affection and disturbance

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16
Q

How do you calculate land taken?

A

The value of the freehold land which has been acquired.

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17
Q

What is severance?

A

Where a piece of land has been cut off from what it was before. E.g. a road through a field and therefore the field no longer has an access to it. Therefore, the land has been devalued

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18
Q

What is injurious affection

A

The value of assets depreciating as a result of the scheme

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19
Q

What is it called where works have taken place and as a result of the works the land becomes more valuable?

A

Betterment

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20
Q

Severance and injurious affection are what?

A

The land being devalued as a result of the scheme

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21
Q

How do you calculate the crop loss at Cotgrave?

A

Taking the loss of crop value for the land taken over 3 years (100% Y1, 50% Y2 and 25% for Y3) deducting the costs for the seeding, fertilising and spraying of the area.

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22
Q

What is the difference between gross margin and profit?

A

Gross margin = income - variable costs
Profit = overall income - variable costs - fixed costs

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23
Q

What are variable costs?

A

Costs which are directly attributable to the enterprise and vary compared to the output e.g. seeding, fertilising and spraying

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24
Q

What are fixed costs?

A

Any other costs which are not attributable with your enterprise and do not change with output e.g. labour, electricity, cultivation

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25
Q

What is the act for compensation

A

Land Compensation Act 1973

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26
Q

What is the principle of the Land Compensation Act 1973?

A

people whose land is acquired compulsorily should be left neither better nor worse off financially as a result of the their land being acquired

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27
Q

What is the main legislation relating to water?

A

Water Industry Act 1991

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28
Q

What notices need to be served under the WIA 1991?

A

Section 159 and Section 168

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29
Q

What is a Section 159 notice under the WIA 1991?

A

Ability to lay pipe

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30
Q

What is a section 168 notice under the WIA 1991?

A

Entry to land

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31
Q

How many days notice is needed to be served under a Section 159 of the WIA 1991?

A

3 months to a lay a new pipe
42 days to replace on a like for like basis

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32
Q

How many days notice is needed to be served under a Section 168 notice of the WIA 1991?

A

7 days for access-

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33
Q

At Cotgrave what did you advise the value of compensation to be?

A

Route A = £5,000
Route B = £3,100

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34
Q

Under what statute and basis was the compensation assessed?

A

Under Schedule 12 of the Water Industry Act 1991

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35
Q

What are the key principles for assessing compensation under the Land Compensation Act 1973

A

Compensation is based on the market value of the land which is to be acquired

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36
Q

How do you value compensation? LIDOF

A

Land Taken
Injurious Affection / Severance
Disturbance (e.g. crop loss)
Other matters
Fees

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37
Q

What statutory rights did you advise your client has to take access?

A

To access onto private land to lay pipes, wires, cables and other service infrastructure

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38
Q

What notice can be served to take access?

A

A section 168 for investigation purposes for 7 days notice

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39
Q

What can your client do under a Section 168 notice?

A

Entry for works purposes to carry out any survey or tests for the purpose of determining whether it is appropriate and practicable for the undertaker to exercise any relevant works or how any such power should be exercises and further to exercise any such power

40
Q

At Bronwydd, what did you advise your client in terms of maintaining the access route?

A

To ensure that the right of access is maintained at all times and not blocked

41
Q

At Bronwydd, what was the freeholders recourse have been if the long leaseholder had refused a right of access?

A

To ask the court for an injunction and to cover legal costs associated with it

42
Q

At Norton Juxta what statutory notice did you serve?

A

A Section 168 and 159 of the Water Industry Act 1991

43
Q

What rights does a Section 159 give under the Water Industry Act 1991?

A

Power to lay pipes (42 days to maintain/replace on a like for like basis and 3 months for the installation of a new pipe)

44
Q

What rights does a Section 168 give under the Water Industry Act 1991?

A

Entry for works purposes (7 days notice)

45
Q

What options would be available if entry was refused?

A

A warrant from the court

46
Q

At Hutton Cranswick, what was the scheme of what the survey formed part of?

A

An inspection pre-build for an upgraded telecoms mast

47
Q

At Hutton Cranswick, what statutory rights did the Tenant have to do these works?

A

The Tenant had rights under the agreement to carry out works under the existing agreement as well as rights under the Telecommunications Act 1984

48
Q

What rights would a gas undertaker have to take access to brand new land?

A

The Gas Act, Water Industry Act and Electricity Act have similar rights but the water and electricity act have compulsory purchase powers which are harder to exercise under the gas act

49
Q

At Cotgrave, what was the scheme?

A

Existing reservoir with existing pipe is in the field. Severn Trent need to join the 2 pipes. Client had 2 options, one straight across the field (Route A) and the other around the field boundary (Route B). Route A is 300m and Route B is 400m. Route A meant that part of the field would be severed and that means that 2 acres of the field would be lost during construction. Route B followed the boundary and field largely unaffected.

50
Q

What were the variable costs associated at Cotgrave?

A

Seeding @ £27 per acre
Fertiliser @ £159 per acre
Crop Protection @ £59 per acre
Sundries @ £8 per acre

51
Q

Why were the costs at Cotgrave worked out at Market Value opposed to Gross Margin?

A

As the scheme was taking place in the months prior to Harvest. If the scheme was being done in the Winter this would have been reflected in the Heads of Claim

52
Q

How did you work out the £ per hour of the Landowners time?

A

This is an industry standard and client tolerance level

53
Q

Why in a heads of claim is the crop loss worked out over 3 years?

A

As this reflects soil damage to get back to where it was prior to the scheme taking place

54
Q

Where did you work out the costs from?

A

The Agriculture Budgeting and Costing Book, November 2022

55
Q

Where did the £200 per ton for Winter Oats figure come from?

A

The Farmers Weekly market price from that point in time

56
Q

What basis did you work out compensation?

A

In line with Schedule 12, Para 2 of the Water Industry Act 1991

57
Q

In Schedule 12 of the WIA 1991, what does it state?

A

the relevant undertaker will do as little damage as possible in the exercise of the powers to which this paragraph applies; and to pay compensation for any loss caused or damage done in the exercise of those powers.

58
Q

What fee did you agree to carry out the compensation claim at Cotgrave?

A

£750 + VAT

59
Q

What powers does the Electricity Act 1989 afford to statutory undertakers?

A

Have rights to access, maintain, improve, replace, lay pipes over/under/through land and survey

60
Q

What is the difference between a wayleave and an easement?

A

Wayleaves are not permanent and are time limited and granted on the occupier of the land. Easements are granted on the land and are rights someone holds over land owned by someone else. These are attached to the land and are normally created by deed.

61
Q

What other methods are there to securing rights over land?

A

Access agreement, lease, or bound by other statutory powers

62
Q

At Birchwood Way, you were involved with the laying of a fibre wayleave agreement. Under what act was the fibre optic cable laid?

A

Communications Act 2003

63
Q

On what basis £ per sq ft was the wayleave agreed at Birchwood Way?

A

The figures presented were nominal figures and therefore a one-off payment for a fixed term was agreed at £1,500 + VAT but the main issue was to do with the route of the wayleave route which I resolved.

64
Q

What was your fee for overseeing the work at Birchwood Way?

A

£1,000 + VAT

65
Q

At Hutton Cranswick you undertook a photographic and written record of condition. What was the purpose of that?

A

Prior to works taking place to replace the mast, it was important to undertake a record of condition of the areas external to ensure that if any damage was caused, this could be rectified and/or properly compensated for.

66
Q

Did you undertake the record of condition yourself?

A

I was accompanied by my line manager.

67
Q

What areas did you photograph in your record of condition?

A

Access route, compound itself, set down areas and any other external areas of the site which could have been damaged.

68
Q

Why is it important to do a record of condition?

A

To act as a point of reference for when works complete, the undertaker has a responsibility to either reinstate to no better or worse than before works started. Where that can’t be done physically, that is when the works needs compensating for. The undertaker has a duty to make full compensation to any person sustained any loss or damage.

69
Q

At Norton Juxta, what statutory notice did you serve?

A

A section 159 for the ability to lay a new pipe and a Section 168 for access to survey

70
Q

Under a section 159 what are the notice periods?

A

new pipe is 3 months and maintenance or replacement on a like for like basis is 42 days

71
Q

What is emergency notice period for maintenance?

A

No notice

72
Q

Under a section 168 what is the notice period?

A

7 days

73
Q

Was the survey intrusive or non-intrusive at Norton Juxta?

A

Non-intrusive

74
Q

If the survey at Norton Juxta was intrusive, would the landowner be entitled to compensation?

A

Yes, if the result of the intrusive survey had sustained any loss or damage

75
Q

When working at Stand Close, what was your advice in agreeing the lease?

A

I advised my client on the 3 titles and proposed an access route which meant that we would only have 1 agreement opposed to needing multiple routes

76
Q

Was there any other advice given at Stand Close?

A

Yes, I successfully agreed the Heads of Terms

77
Q

What basis did you agree the rent at Stand Close?

A

I agreed this based on the Dale Park decision in the Affinity Water Table which since the Digital Economy Act 2017 came into force, there has been a number of disputes in the Upper Tribunal (Lands Chamber) and a framework has been provided for agreeing rents in the EE vs Affinity Water case for different site types

78
Q

At Bronwydd, who was your client?

A

The long leaseholder

79
Q

At Bronwydd, what was your advice to the long leaseholder?

A

To ensure that the proposed works by the freeholder were not going to impinge on the access track around the external area of the building

80
Q

At Bronwydd, was any rent reduction agreed on behalf of the client?

A

No, as this is an agreed on a peppercorn rent but both have 50:50 responsibility for maintenance of the access track

81
Q

At Cotgrave, what crop was it?

A

Winter Oats

82
Q

What value is Winter Oats?

A

£200 per tonne

83
Q

What did you to minimise the disruption and compensation costs?

A

I advised on the most suitable route for which the compensation payable would be needed

84
Q

Was there significant differences in the compensation at Cotgrave?

A

Route A was £5,000 and Route B was £3,100

85
Q

Why was there a difference in the two routes at Cotgrave?

A

Route A would have severed the land taken and disrupted the access

86
Q

What statutory powers do water companies hold?

A

The power to CPO if neccessary

87
Q

At Norton Juxta what was the most suitable route?

A

The route around the perimeter of the field

88
Q

Why was the route important to the fibre company?

A

To ensure the telecoms site could operate 5G

89
Q

What advise did you give to your client regarding the route?

A

I advised that the proposed route would see access issues for the tenant and therefore advised that the route should go in the grass verge

90
Q

What is gross margin?

A

revenue - variable costs

91
Q

What is proft?

A

Revenue - variable costs - fixed costs

92
Q

At Bronwydd, if the freeholder had carried out the works, what would the legal position have been?

A

Trespass and a solicitor would have needed to decide which course of action to take

93
Q

Is there any guidance on records of condition?

A

Yes, the surveying assets in the built environment 2017

94
Q

What rights does a gas company have?

A

They have rights to lay new pipes but do not have rights to access land

95
Q

What agreement can a gas/water company have?

A

They can have easements only

96
Q

What is a necessary wayleave?

A

A statutory right which confers powers on license holder to install their electric lines and associated equipment on private land, to keep electric lines there and to have access to that land

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