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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
What is the act for compensation
Land Compensation Act 1973
26
What is the principle of the Land Compensation Act 1973?
people whose land is acquired compulsorily should be left neither better nor worse off financially as a result of the their land being acquired
27
What is the main legislation relating to water?
Water Industry Act 1991
28
What notices need to be served under the WIA 1991?
Section 159 and Section 168
29
What is a Section 159 notice under the WIA 1991?
Ability to lay pipe
30
What is a section 168 notice under the WIA 1991?
Entry to land
31
How many days notice is needed to be served under a Section 159 of the WIA 1991?
3 months to a lay a new pipe 42 days to replace on a like for like basis
32
How many days notice is needed to be served under a Section 168 notice of the WIA 1991?
7 days for access-
33
At Cotgrave what did you advise the value of compensation to be?
Route A = £5,000 Route B = £3,100
34
Under what statute and basis was the compensation assessed?
Under Schedule 12 of the Water Industry Act 1991
35
What are the key principles for assessing compensation under the Land Compensation Act 1973
Compensation is based on the market value of the land which is to be acquired
36
How do you value compensation? LIDOF
Land Taken Injurious Affection / Severance Disturbance (e.g. crop loss) Other matters Fees
37
What statutory rights did you advise your client has to take access?
To access onto private land to lay pipes, wires, cables and other service infrastructure
38
What notice can be served to take access?
A section 168 for investigation purposes for 7 days notice
39
What can your client do under a Section 168 notice?
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
At Bronwydd, what did you advise your client in terms of maintaining the access route?
To ensure that the right of access is maintained at all times and not blocked
41
At Bronwydd, what was the freeholders recourse have been if the long leaseholder had refused a right of access?
To ask the court for an injunction and to cover legal costs associated with it
42
At Norton Juxta what statutory notice did you serve?
A Section 168 and 159 of the Water Industry Act 1991
43
What rights does a Section 159 give under the Water Industry Act 1991?
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
What rights does a Section 168 give under the Water Industry Act 1991?
Entry for works purposes (7 days notice)
45
What options would be available if entry was refused?
A warrant from the court
46
At Hutton Cranswick, what was the scheme of what the survey formed part of?
An inspection pre-build for an upgraded telecoms mast
47
At Hutton Cranswick, what statutory rights did the Tenant have to do these works?
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
What rights would a gas undertaker have to take access to brand new land?
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
At Cotgrave, what was the scheme?
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
What were the variable costs associated at Cotgrave?
Seeding @ £27 per acre Fertiliser @ £159 per acre Crop Protection @ £59 per acre Sundries @ £8 per acre
51
Why were the costs at Cotgrave worked out at Market Value opposed to Gross Margin?
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
How did you work out the £ per hour of the Landowners time?
This is an industry standard and client tolerance level
53
Why in a heads of claim is the crop loss worked out over 3 years?
As this reflects soil damage to get back to where it was prior to the scheme taking place
54
Where did you work out the costs from?
The Agriculture Budgeting and Costing Book, November 2022
55
Where did the £200 per ton for Winter Oats figure come from?
The Farmers Weekly market price from that point in time
56
What basis did you work out compensation?
In line with Schedule 12, Para 2 of the Water Industry Act 1991
57
In Schedule 12 of the WIA 1991, what does it state?
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
What fee did you agree to carry out the compensation claim at Cotgrave?
£750 + VAT
59
What powers does the Electricity Act 1989 afford to statutory undertakers?
Have rights to access, maintain, improve, replace, lay pipes over/under/through land and survey
60
What is the difference between a wayleave and an easement?
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
What other methods are there to securing rights over land?
Access agreement, lease, or bound by other statutory powers
62
At Birchwood Way, you were involved with the laying of a fibre wayleave agreement. Under what act was the fibre optic cable laid?
Communications Act 2003
63
On what basis £ per sq ft was the wayleave agreed at Birchwood Way?
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
What was your fee for overseeing the work at Birchwood Way?
£1,000 + VAT
65
At Hutton Cranswick you undertook a photographic and written record of condition. What was the purpose of that?
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
Did you undertake the record of condition yourself?
I was accompanied by my line manager.
67
What areas did you photograph in your record of condition?
Access route, compound itself, set down areas and any other external areas of the site which could have been damaged.
68
Why is it important to do a record of condition?
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
At Norton Juxta, what statutory notice did you serve?
A section 159 for the ability to lay a new pipe and a Section 168 for access to survey
70
Under a section 159 what are the notice periods?
new pipe is 3 months and maintenance or replacement on a like for like basis is 42 days
71
What is emergency notice period for maintenance?
No notice
72
Under a section 168 what is the notice period?
7 days
73
Was the survey intrusive or non-intrusive at Norton Juxta?
Non-intrusive
74
If the survey at Norton Juxta was intrusive, would the landowner be entitled to compensation?
Yes, if the result of the intrusive survey had sustained any loss or damage
75
When working at Stand Close, what was your advice in agreeing the lease?
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
Was there any other advice given at Stand Close?
Yes, I successfully agreed the Heads of Terms
77
What basis did you agree the rent at Stand Close?
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
At Bronwydd, who was your client?
The long leaseholder
79
At Bronwydd, what was your advice to the long leaseholder?
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
At Bronwydd, was any rent reduction agreed on behalf of the client?
No, as this is an agreed on a peppercorn rent but both have 50:50 responsibility for maintenance of the access track
81
At Cotgrave, what crop was it?
Winter Oats
82
What value is Winter Oats?
£200 per tonne
83
What did you to minimise the disruption and compensation costs?
I advised on the most suitable route for which the compensation payable would be needed
84
Was there significant differences in the compensation at Cotgrave?
Route A was £5,000 and Route B was £3,100
85
Why was there a difference in the two routes at Cotgrave?
Route A would have severed the land taken and disrupted the access
86
What statutory powers do water companies hold?
The power to CPO if neccessary
87
At Norton Juxta what was the most suitable route?
The route around the perimeter of the field
88
Why was the route important to the fibre company?
To ensure the telecoms site could operate 5G
89
What advise did you give to your client regarding the route?
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
What is gross margin?
revenue - variable costs
91
What is proft?
Revenue - variable costs - fixed costs
92
At Bronwydd, if the freeholder had carried out the works, what would the legal position have been?
Trespass and a solicitor would have needed to decide which course of action to take
93
Is there any guidance on records of condition?
Yes, the surveying assets in the built environment 2017
94
What rights does a gas company have?
They have rights to lay new pipes but do not have rights to access land
95
What agreement can a gas/water company have?
They can have easements only
96
What is a necessary wayleave?
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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