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RICS APC 2023 - My SoE > Access And Rights > Flashcards

Access And Rights Flashcards

1
Q

What rights of access did you advise of at Brelston court?

A

Easement commenced in 2012
Rights to access along new access way with vehicles and equipment or on foot to repair maintain or replace any services, structures or facilities
Must compensate for damage afterwards

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2
Q

What is the Necessary Wayleave Process?

A

I would have advised my client to apply for a necessary wayleave under schedule 4 of the Electricity Act 1989

21 days written notice to LO

If LO refuses to grant voluntary wayleave, or accepts on terms unacceptable to licence holder, apply to the Secretary of State for necessary wayleave in accordance with paragraph 6(3) of Schedule 4

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3
Q

What legislation governs the Electricity Sector

A

The Electricity ACT 1989

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4
Q

What legislation governs the Gas sector?

A

The Gas Act 1986 as amended in 1995

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5
Q

What legislation governs the water sector

A

The water industry act 1991

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6
Q

What terms did you advise on for the wayleave at bramhall

A

VM suggested that the wayleave continue unless terminated. I advised that a term of 10 years would be more suitable

Any vegetation clearance impacting apparatus was the responsibility of VM solely

Requested minimum of seven days notice for any maintenance or inspection of the asset

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7
Q

What was the licence fee at Bramhall wayleave?

A

£2500
£10/m

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8
Q

Who is able to sign the wayleave agreement at bramhall?

A

My client as the landowner

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9
Q

What was your advice in terms of the abandonment of the R/E pipeline?

A

No physical access to the land required (formality)
Abandonment certificate under Pipelines Act 1962
Serve notice under s36
Abandonment certificate with date effective on
Corresponding plan

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10
Q

What did you advise in relation to the test post in Chippenham

A

I advised that the proposed location of the test post should be moved to within the boundary of the Arable field in order to minimise disturbance to the practices over the land, reduce likelihood of damage to the apparatus, and minimise compensation liabilities

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11
Q

What factors did you take into consideration in terms of the feasibility study at the River Dean

A

A route within the alignment of the current route would not require new rights
Any diversion would require new rights
All proposed routes impacted a river- EA permit required
One route closer to angling club- very cooperative but longer
One route through garden - shorter but more complex issues with the landowner

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12
Q

What notices did you serve under the energy act 2013
What steps would you take if notices were refused

A

Exercised my client’s rights under the Energy Act 2013
Section 121 provides for a right to entry at reasonable time and at consent from the occupier.
- Access at reasonable time and with consent from the occupier.

If access is not permitted, apply for a warrant from the Justice of Peace under section 122

Also served notice of completion to formalise agreement that the works are complete - commence agreement of compensation under s124

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13
Q

What was the consideration payment you negotiated at Brampton Hut?

A

Based on 100% loss of agricultural value over the easement width
Valued at £8500 per acre using 5 comparables
(£13/m)

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14
Q

What act provides for ADR for compensation in the electricity sector?

A

Electricity transmission (compensation) Act 2023

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15
Q

How is access taken under the Gas Act 1986
Existing equipment

A

Paragraph 27 of the Gas Code (schedule 2B of the Act) allows for 7 day notice to repair and maintain existing apparatus.

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16
Q

What % of land value is generally paid for a Gas Easement on Ag and Commercial Land ?

A

85% value of ag land
50% value for commercial

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17
Q

What is the purpose of the pipeline safety regulations 1996

A

Prohibits any person from causing damage to a pipeline which may give rise to a danger to persons

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18
Q

What governs powers of compensation for Exolum

A

Section 124 of the Energy Act 2013

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19
Q

What is a wayleave

A

A personal right between two parties to use and enter onto another persons property without possessing it.

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20
Q

What is an easement

A

A non possessory charge on land to grant another party right to use or enter the property

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21
Q

What is the basis of payment for a wayleave

A

Rates are provided by energy networks for apparatus types and areas

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22
Q

What is the basis of payment for an easement

A

50% land value as per St John’s College Oxford v Thames Water Authority (1990)
85% if gas

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23
Q

What legislation did your client rely upon with the test post at Chippenham

A

Energy Act 2013 - Part 4
S120 right to remove, replace or renew
S121 right of entry - right to enter land over GPSS and any land held with that

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24
Q

Were the rights of the test post in Chippenham regularised under any other documentation

A

My client has rights under the Energy Act 2013 to renew, replace, access and maintain their apparatus and as such does not regularise the installation of these with wayleave or easements

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25
What would you do if the landowner refused access for some of the works on Exolum?
I would negotiate with them I would advise my client to move forwards with the warrant process as defined in s122 of EA2013
26
What is the process for a warrant under the EA13
Justice of peace may issue warrant JoP satisfied that - A- 7 days notice of intention given to occupier, occupier cannot be found or urgent action is required B- That entry onto the land has been/will be refused C- There are reasonable grounds for exercising right May use force under warrant Offence to obstruct exercise of rights conferred by warrant
27
How was the payment calculated for the wayleave at Bramhall
Used a comparable for a similar site nearby Hierarchy of comparables
28
What is the hierarchy of comparables
Set out in RICS guidance note A-Direct comparables - completed transactions or near identical properties B-General Market Data - can provide guidance rather than direct indication of value C-other sources - other types of real estate, interest rates, stock market etc
29
What legislation was the wayleave at Bramhall under?
The electronic communications code 2017 as detailed in schedule 3A of the Communications Act 2003
30
What would you have done if access had continued to be refused at brelston court?
This would be a breach of contract. I would have advised my client to apply to the courts to get a Bayliff to acquire access
31
How did you present access instructions to your client at Brelston court?
Carried out a record of condition Presented a pre-entry document to contractors including; access routes, LO instructions and LO details
32
How did you deal with the GDPR with providing LO details to contractors?
We are a processor of National Grid’s data. We are providing it to the contractors as part of their contract with National Grid. Data Protection Act 2018 requires landowner consent… also use version control so it can be deleted when complete.
33
What are the expected time and money implications of a warrant?
£25,000 3 months
34
How long was the cable length at Bramhall
250 m
35
What was the basis of the Wayleave payment at bramhall?
Recent comparables achieved my my college £3000 for 290m
36
What are Virgin Media's standard rates for a similar cable?
£6.30 per metre
37
What is the telecoms legislation
The Electronic Communications Code 2017 bought in by the Digital Economy Act 2017. Set out in Schedule 3A of the Communications Act 2003.
38
What rights are granted under the Electronic communications code 2017?
Code rights are granted to those listed by Ofcom. Code right holders are able to install, maintain, inspect and operate. Code right holders can apply to court to access land without landowner's consent provided that the landowner is adequately compensated and that the benefit to the public outweighs the burden to the landowner L&T54 Act does not apply
39
What rights do Exolum have to terminate the agreement at Bramhall?
If development is being undertake, Exolum could terminate the wayleave by serving notice to VM for minimum of 18 months
40
How did you advise your client in terms of contamination in relation to the R/E Abandonment
Advised client of the Polluter Pays Principle. Risk that they could be considered the polluter and required to pay an amount proportionate to the environmental damage. Minimised risk by ensuring it was made safe - cleaning pig and grouted. Issued engineering abandonment certificates also.
41
What legislation were the test post works in chippenham carried out under? Notices?
The Energy Act 2013 A notice of Entry under s121 was required to be served. No prescribed form, just to formalise the 'agreement' to enter land.
42
What would you do if access was denied under s121 of the Energy Act 2013?
Advise that my client should apply to the Justice of Peace to issue a warrant for entry.
43
What are the requirements for a Warrant under EA13?
s122 7 days notice of intention to apply for a warrant. Occupier cannot be found. Urgent action is required. Allows reasonable force to be used. Offence to intentionally obstruct the exercise of the rights contained within the warrant.
44
What were the HoT's agreed in the Bramhall Wayleave?
Parties Property Rights afforded by the agreement The Company (VM's) responsibilities (agrees to relocate apparatus opon written notice)
45
What was included in the abandonment notice
Title - Abandonment under Pipelines Act Details of rights being relinquished Reference to the Plan Date Effective Address of both parties Signature from Exolum CEO
46
What were the HoTs of the Subterranean Lease at Brampton Hut?
Grantor Grantor's Agent (£120/hr) Grantor's Solicitor (£2000 limit) Exolum's details (Agent and solicitor) Pipeline details (plan and 8") Term - 999 years Payment - £13/m Rights - Construct Lay, use/maintain and inspect.
47
What is the difference between a wayleave and an easement
A wayleave is a personal agreement with the owner of land. It is generally paid on an annual basis. An easement if a charge on the land which lasts in perpetuity. It is registered with the land registry and remains with the land if it is sold.
48
Who regulates the water sector?
Ofwat
49
WIA 1991 powers of entry
s159 3 months - new apparatus 42 days - existing apparatus 'reasonable notice' - Emergency Works
50
WIA 1991 Compulsory Purchase
permitted under s155 Acquisition of Land Act 1981 and Compulsory Purchase Act 1965
51
WIA 1991 Compensation Provisions New pipes and other works Legislation
New Pipes - Schedule 12 New pipes - depreciation of value of interest in land St Johns College Oxford v Thames Water Authority 1990 - 50% reduction Other works - Schedule 6 - standard rates paid
52
Gas Act 1986 (amended 1995) Powers of Entry
New Pipes - negotiation and compulsory purchase Maintenance - Schedule 2 of the Act = The Gas Code Paragraph 27 = 7 days notice to replace or repair
53
Gas Act 1986 (amended 1995) Compulsory Purchase Rights - Section - Acts - Compensation
Schedule 3 Part 2 Refers to the Acquisition of Land Act 1981 and the Compulsory Purchase Act 1965 Compensation for land value and Severence/IA
54
Gas Act 1986 (amended 1995) Compensation Provisions
St Johns College Oxford v Thames Water Authority [1990] - 85% land value Plus IA and severance Compensation for maintenance = fee scale
55
Electricity Act 1989 Powers of Entry
Schedule 6 (The Electricity Code) - Section 9 requires five working days notice to be given
56
Electricity Act 1989 Compulsory Purchase
Schedule 3 Part 1
57
Electricity Act 1989 Compensation Provisions
Section 10 of the Electricity Code (Schedule 6) Compensation payable for damages
58
What would you do is land in the Handforth Road Diversion was special category land
I would advise that rights could only be gained through negotiation. I would advise that to minimise impacts on the project, this should be routed around, and if not possible negotiations should commence early.
59
What are the standard terms granted under a necessary wayleave?
15 years term which cannot be terminated Ties to land so valid even if LO changes
60
What are the time and cost implications associated with the necessary wayleave process
£45,000 1.5-2 years. Could take longer
61
What are the types of wayleave agreement
Documented or implied
62
What are the triggers for a necessary wayleave process? 3 scenarios
LO can serve notice (12 nonths). Once expired they can serve a notice to remove. This triggers necessary wayleave process. Also, if there is no wayleave but operator requires provision of wayleave and LO refuses to sign, this is equivalent to notice to remove and triggers process. can also be used for lopping and topping trees for safety zones. However this is uncommon
63
What guide is available for necessary wayleaves?
Guide to the necessary wayleave process published by Department for Energy and Climate Change
64
What evidence/practical steps are required for a necessary wayleave?
Operator to SoS that application is held in obeyence (meaningful negotiations underway) Oral hearing or written representations Costings for alternative options i.e. diversion or undergrounding Demonstrate national significance of infrastructure
65
What year is St Johns College Oxford v Thames Water Authority
1990
66
Is planning required for new test posts?
No It is considered de minimus - too small for an application
67
What is a subterranean Lease
A lease of the subsoil which affords my client the right to operate and maintain their pipeline for a term of 999 years in return for a lump sum payment upon commencement of the lease

RICS APC 2023 - My SoE (9 decks)

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