Access and Rights Over Land

Question 1

What is a wayleave?

Answer 1

A terminable license linked to owners/occupiers of a property/land rather than the land itself.
Grants a temporary right of passage over or through land often used by utility companies to lay cables/pipes in or over land with an annual payment to the owner
Does not bind successors in title

Question 2

What is an easement?

Answer 2

Can also be known as a deed of grant, non-possessory right.
Interest in land where one party has a right (dominant tenement) for the benefit of his land, over the land of another (Servient tenement) related to the land and cannot be terminated.

Usually relates to permanent statutory access agreements for larger infrastructure project such as installation of new water, gas or sewerage pipes.

Question 3

Where can you find information on Wayleaves & easements?

Answer 3

For Wayleaves:
Contact the relevant utility companies or review historical documentation if available - Wayleaves do not directly affect the land so will not likely be registered on land registry.

For Easements:
Land Registry tile register - Easements directly affect the land and are registered on the title to the property at and Registry

Question 4

What is a covenant?

Answer 4

A type of contractual promise concerning land.

Two types:
Restrictive Covenants
Positive Covenants

Question 5

What is the difference between a restrictive and a positive covenant?

Answer 5

Restrictive Covenant:
Agreement in a deed that one party will restrict the use of its land in some way for the benefit of another’s land.
Binds successors in title
Example: limit uses of the land to residential purposes only.

Positive Covenant:
Imposes obligation to carryout some positive action in relation to land or requires expenditure of money.
Only enforceable against the promisor
Example: works of repair or maintenance

Question 6

What are the Key features of the Water Industry Act 1991?

Answer 6

S168 - 7 Day notice for tests & surveys
S159 - 3months to lay relevant pipe or 42 days to repair existing pipe
S185 - Developers ask for pipe to be diverted off development land, developer pays costs
Sch 13 - deals with protected undertakers
S118 & Sch 12 Compensation

Question 7

What are the key features of the Electricity Act 1989?

Answer 7

S.9 - Develop & maintain efficient co-ordinated & economical system

S.16 - Duty to connect premises to distribution systems

Sch 6 - distributers can access land to maintain existing apparatus which has been lawfully laid - 5 days notice

Negotiations for new equipment

Sch 4. Para 1 - ability to install electricity cable within private land

Sch 4 - Compensation

Question 8

What are the key features of the Gas Act 1986?

Answer 8

S.9 Develop & maintain an efficient , co-ordinated & economical system

S.10 Connect Premises to the system

Sch 2 - Powers of entry for replacement & repair of existing pipe (7 day notice)

Negotiation for new equipment.

Part 2 of Sch 3 - refers to Acquisition of Land Act 1981 & Compulsory Purchase Act 1965 - Depreciation in value by the acquisition of the right.

Question 9

Who has Statutory Access to Enter Land How do they do this?

Answer 9

Utility Companies:
Water - WIA 1991 as amended by Water Act 2008
Electricity - Electricity Act 1989
Gas Companies - Gas Act 1986 & Rights of Entry (Gas and Electricity Boards) Act 1954
Telecommunications Companies - Communications Act 2003

Environment Agency - Environment Act 2021 Water Resources Act 1991

Railway Companies - Railway Regulation Act 1842

Highways - Highways Act 1980

Local Authorities - Town & Country Planning Act 1990

Question 10

What are the differences in processes/procedures for different industries - Water, Electricity & Gas?

Answer 10

Water:
S159 Notices - 3 month Notice to lay new pipes
S159 Notice - 42 days notice to maintain alter existing pipes
S168 Notice - for surveys & tests
In event of an emergency no notice will be required

Electricity:
5 day notice to maintain existing apparatus.
Easement, wayleaves, lease or freehold acquisition

Gas:
Notice under sch 2 of Act. 7 days notice for replacement or repair of existing pipe
Deed of easement for new equipment

Question 11

What about access to by highways, rail and other?

Question 12

What Notices are or can be served to gain access?

Question 13

How do Notices differ for maintenance upgrading or installation?

Question 14

What can the land owner do wen receiving relevant Notices?

Answer 14

Query the Notice & engage the services of a land agent to act on their behalf

Question 15

What can a tenant do when notified of access?

Answer 15

Query the Notice & engage the services of a land agent to act on their behalf

Question 16

How is compensation calculated?

Answer 16

Water Companies - Under Sch 12 of WIA 1991

Electricy Act 1989 - Under Sch 4

Gas Act 1986 - Under Sch 3

Question 17

What can be compensated for?

Answer 17

anything that is:
reasonable
Evidenced
any loss or time spent in connection with the works

Question 18

What cant be compensated for?

Answer 18

anything which is:
unreasonable
not evidence
Not as a result of the works
In CPO any hope value attributed to the land

Question 19

When is compensation statutory/negotiated/negotiable?

Answer 19

Statutory right will not arise unless Compulsory powers are exercised

Compensation is always negotiable

Question 20

How are compounds negotiated?

Answer 20

By agreement, unless they are contiguous to the works then this is done under notice.

Planning permission may be required but this is the responsibly of the AA

Question 21

What is the legal tenancy of a compound?

Answer 21

usually under License - No right to exclusive possession, no interest in the land

Can be a lease under 54 Act, however this would need to be drafted by solicitors, takes longer and more costly

Question 22

What is a PROW?

Answer 22

Public Right of Way is a legally protected right for the public to pass and re-pass at all times on specific paths, existing for the benefit of the community.

Key legislation is the Countryside Rights of way Act 2000

Question 23

How are PROW’s recorded?

Answer 23

Recorded by Local Authorities through Definitive Map and Statement (DMS):

a map and accompanying statement detailing location, type and any limitations on the public’s right of way

Question 24

How are PROW’s registered?

Answer 24

By virtue of s31 of the Highways Act 1980

If a path or way has been used for continuously for 20 years without force, secrecy or permission and the landowner has done nothing to demonstrate their lack of intention to dedicate the highway to public use.

Making a S31(6) deposit and lodging with the Local Authority.

Question 25

How to upgrade a public Right of Way?

Answer 25

Thorough a Definitive Map Modification Order (DMMO) for e.g. if a footpath has been used for many years by horse riders and you wish to have described as a bridleway.

Question 26

How can DMMO be created?

Answer 26

Under Schedule 14 of the Wildlife and Countryside Act 1981 on a prescribed form accompanied by a scale map show the way and documentary evidence including witness statements to support the application.

Question 27

How can you protect your client from from an additional/new right of way being created?

Answer 27

s31(6) of Highways Act 1980 - Highways Statement - Land owner can deposit a statement accompanied by a map, acknowledging existing RoW across their land and at the same time declaring they have no intention of dedicating further routes to the public. Protects the land for 20 years from date of deposit, but must be followed up with a declaration within this period to ensure protection of the land for a further 20 years from the date of declaration.

Question 28

What are landowners liabilities for maintaining PROW?

Answer 28

making sure people can access the public rights of way on their land. This includes making sure they’re clear of crops and overhanging plants and looking after stiles and gates, as well as managing any livestock. need to get permission to put up any new structures, but not to make repairs

Question 29

Utility Company license agreements: access routes, working areas and working width what did you do?

Answer 29

License Agreement - for compound for a Utility Company to store pipes & materials, not contiguous to the works so could not taken under notice, I reviewed the license and plan and suggested to the client that the compound be moved to the corner of the field closest to the road to minimize impact for grazing and cutting, with the access to be fenced to allow maximum use of the field. The utility company offered £100/week and I suggested from previous agreements a License fee of £200 would be more appropriate. I suggested taking a record of condition before access was taken to ensure there was record to rely on when it came to compensation for any damage done.

Question 30

What was the situation, how did you ensure that a lease was not created?

Answer 30

I reviewed the License agreement and made sure that it contained: A clause which expressly denied the acquiring authority exclusive possession used language applicable to a license such as Licensee & licensor. The license period was for 6 months ensuring that it could not be deemed a lease under Part II of the 1954 Act . The specific use for the which the compound was required.

Question 31

Interim claim for crop loss? what was the situation?

Answer 31

Network Rail took access across a Permanent Pasture to undertaken fencing works causing extensive damage to field surface.

Question 32

What did you do?

Answer 32

Attended site to inspect the damage, measured & photographed damage; I drafted the interim compensation claim for crop loss. The clients undertook the reinstatement themselves.

Question 33

How did you establish details of your claim.

Answer 33

Industry Standard: 1. Crop loss - inc. how damage was caused, details of damage and when the fields could be reseeded, Area (1.84acres) Comparable price/ac from our grass auction £230/ac 2. Reinstatement - field preparation inc. cultivations, tilling seed, spraying, spreading fert - this includes time spent. Seed Cost Fert cost 3. Reservations inc. reserving the right for future claims.

Question 34

How did you calculate the claim for reinstatement of permanent pasture?

Answer 34

Used comparable evidence from our grass keep auctions (with particular reference to field for mowing) - £230/ac Area was 1.84ac Area could not be reseeded until spring the following year. Using CAAV guidance I calculated future crop loss: 2023 part loss 2024 - 100% loss 2025 - 60% loss 2026 - 30% loss 2027 - 15% loss

Question 35

SWW access to working area how did you negotiate the route?

Answer 35

reviewed & discussed notice plan with the client, I suggested that this was queried with SWW Directly affect the cow track used by farmer on a daily basis to bring cattle in for milking. raised landowners concerns with SWW and suggested to client that they proposed a different route which would be less disruptive Drafted a plan showing an alternative route more agreeable to my client & SWW accepted this SWW amended the notice plan, which was then reviewed and agreed