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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
Q

What would you do if the landowner refused access for some of the works on Exolum?

A

I would negotiate with them
I would advise my client to move forwards with the warrant process as defined in s122 of EA2013

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26
Q

What is the process for a warrant under the EA13

A

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

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27
Q

How was the payment calculated for the wayleave at Bramhall

A

Used a comparable for a similar site nearby
Hierarchy of comparables

28
Q

What is the hierarchy of comparables

A

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
Q

What legislation was the wayleave at Bramhall under?

A

The electronic communications code 2017 as detailed in schedule 3A of the Communications Act 2003

30
Q

What would you have done if access had continued to be refused at brelston court?

A

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
Q

How did you present access instructions to your client at Brelston court?

A

Carried out a record of condition
Presented a pre-entry document to contractors including; access routes, LO instructions and LO details

32
Q

How did you deal with the GDPR with providing LO details to contractors?

A

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
Q

What are the expected time and money implications of a warrant?

A

£25,000
3 months

34
Q

How long was the cable length at Bramhall

A

250 m

35
Q

What was the basis of the Wayleave payment at bramhall?

A

Recent comparables achieved my my college
£3000 for 290m

36
Q

What are Virgin Media’s standard rates for a similar cable?

A

£6.30 per metre

37
Q

What is the telecoms legislation

A

The Electronic Communications Code 2017 bought in by the Digital Economy Act 2017. Set out in Schedule 3A of the Communications Act 2003.

38
Q

What rights are granted under the Electronic communications code 2017?

A

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
Q

What rights do Exolum have to terminate the agreement at Bramhall?

A

If development is being undertake, Exolum could terminate the wayleave by serving notice to VM for minimum of 18 months

40
Q

How did you advise your client in terms of contamination in relation to the R/E Abandonment

A

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
Q

What legislation were the test post works in chippenham carried out under? Notices?

A

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
Q

What would you do if access was denied under s121 of the Energy Act 2013?

A

Advise that my client should apply to the Justice of Peace to issue a warrant for entry.

43
Q

What are the requirements for a Warrant under EA13?

A

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
Q

What were the HoT’s agreed in the Bramhall Wayleave?

A

Parties
Property
Rights afforded by the agreement
The Company (VM’s) responsibilities (agrees to relocate apparatus opon written notice)

45
Q

What was included in the abandonment notice

A

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
Q

What were the HoTs of the Subterranean Lease at Brampton Hut?

A

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
Q

What is the difference between a wayleave and an easement

A

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
Q

Who regulates the water sector?

A

Ofwat

49
Q

WIA 1991 powers of entry

A

s159
3 months - new apparatus
42 days - existing apparatus
‘reasonable notice’ - Emergency Works

50
Q

WIA 1991 Compulsory Purchase

A

permitted under s155
Acquisition of Land Act 1981 and Compulsory Purchase Act 1965

51
Q

WIA 1991 Compensation Provisions
New pipes and other works
Legislation

A

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
Q

Gas Act 1986 (amended 1995) Powers of Entry

A

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
Q

Gas Act 1986 (amended 1995) Compulsory Purchase Rights
- Section
- Acts
- Compensation

A

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
Q

Gas Act 1986 (amended 1995) Compensation Provisions

A

St Johns College Oxford v Thames Water Authority [1990] - 85% land value
Plus IA and severance

Compensation for maintenance = fee scale

55
Q

Electricity Act 1989 Powers of Entry

A

Schedule 6 (The Electricity Code) - Section 9 requires five working days notice to be given

56
Q

Electricity Act 1989 Compulsory Purchase

A

Schedule 3 Part 1

57
Q

Electricity Act 1989 Compensation Provisions

A

Section 10 of the Electricity Code (Schedule 6)
Compensation payable for damages

58
Q

What would you do is land in the Handforth Road Diversion was special category land

A

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
Q

What are the standard terms granted under a necessary wayleave?

A

15 years term which cannot be terminated
Ties to land so valid even if LO changes

60
Q

What are the time and cost implications associated with the necessary wayleave process

A

£45,000
1.5-2 years. Could take longer

61
Q

What are the types of wayleave agreement

A

Documented or implied

62
Q

What are the triggers for a necessary wayleave process?
3 scenarios

A

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
Q

What guide is available for necessary wayleaves?

A

Guide to the necessary wayleave process published by Department for Energy and Climate Change

64
Q

What evidence/practical steps are required for a necessary wayleave?

A

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
Q

What year is St Johns College Oxford v Thames Water Authority

A

1990

66
Q

Is planning required for new test posts?

A

No

It is considered de minimus - too small for an application

67
Q

What is a subterranean Lease

A

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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