Access and Rights - Level 1, 2, 3

Question 1

Name different ways that access to land is granted?

Answer 1

Licences, deed of easements and wayleave agreements

Question 2

When would a licence agreement be used over a easement or wayleaves

Answer 2

When access requirements are temporary (e.g NR examples)

Question 3

What is the difference between licence and lease

Answer 3

With a lease, tenant has sole occupation of the Property (exclusive possession), whereas, with a licence the landlord still is in occupation

Street v Montford 1985 - Street granted Mountford the right to occupy two rooms in his house, with exclusive possession, for a weekly rent and determinable on 14 days’ notice
Street had Mountford sign a declaration that the right to occupy constituted a licence and not a lease
Mountford sought a declaration that the agreement constituted a lease

Held that a lease exists only if exclusive possession is granted of ‘a dwelling’

Question 4

Describe differences between a wayleave and an easement

Answer 4

Wayleave is temporary rights across land whereas an easement is permanent as registered on title (in perpetuity).

Easement is usually a one off payment, whereas a wayleave has yearly payments

Question 5

Define a licence

Answer 5

a temporary agreement between two parties, (licensor and licensee) for activity such as rights of access. With a licence, the licensee does not have exclusive possession of the land, like with a lease.

Question 6

Network Rail - Haslemere Cutting

In the Haslemere Cutting example, how did you determine that NR did not have any rights to access the land

Answer 6

I reviewed the title document to look for easements / rights for NR to enter the land (this is often the case on titles near to the railway). The works was not for emergency works for public safety so could not use s14 of the Railway Regulation Act 1842. It would be possible to use s71 of British Railway Act 1981 for surveys for suitability of construction works, however process takes 28 days and court proceedings. Cheaper and quicker to try to negotiate access with the landowner

Question 7

Network Rail - Haslemere Cutting

What surveys were required on the land

Answer 7

Borehole surveys were to check the stability of the embankment and if required, install an intervention to prevent the embankment from collapsing (take 5 days)

Question 7

Network Rail - Haslemere Cutting

What surveys were required on the land at haslemere cutting

Answer 7

Borehole surveys were to check the stability of the embankment and if required, install an intervention to prevent the embankment from collapsing (take 5 days for the surveys and then monitoring of boreholes over the 3 month period)

Question 8

How do you register land for ownership

Answer 8

If a client came to me asking me to register land - would first measure the land which required ownership (using a trundel wheel). I would draw a red line boundary on a plan and add T marks to indicate who was required to maintain the boundary and then send it across to the solicitors to register the land ownership

Question 9

NR - Haslemere Cutting

How did you initiate contact and organise surveys with council

Answer 9

Contacted the council and attended a site visit with their Tree and Woodland Officer as they were worried that the works would cause compaction to tree roots / soil. On site, we talked about the works, reinstatement of the gate which was required to be removed for the borehole equipment and borehole location. We agreed with the landowner that track matting would be used to reduce the impact to the ground below.

Question 10

Haslemere Embankment

Did you pay a licence fee

Answer 10

A licence payment was paid - £500 for the surveys over the 3 month period. In line with maximum per week and reasonable as there was no other option in terms of the survey taking place (had to be in that location). Property and Estates fee of £200 was also paid (admin fee)

Question 11

Define heads of terms

Answer 11

Head of Terms – document setting out the main terms of a commercial agreement between parties in a transaction

Question 12

Orbit Homes Example

Describe the background on the job

Answer 12

Two residential development schemes at Bexley Heath, one by LB Bexley and another by Orbit Homes (75 units). The scheme owned by the council required access through the Orbit Site as otherwise landlocked – right of access (easement) required through the site to unlock development.

Question 13

What information did you include in the HoTs

Answer 13

• Property Address
• Grantor / Grantee
• Consideration - (based on 50% of the uplift in value) (councils residual development value)
• Grantees/Grantors agents/solicitors
• The proposed access rights – right of way across Cheviot Close, permitted at all times, vehicles and pedestrians,
• Caveats – as Orbit homes developing their scheme adjacent, caveat was that the council would not be granted rights until completion of Orbit development
• Payments – LB Bexley were to pay costs of Orbits legal and professional fees (reasonable)

Question 14

Orbit Homes Example

How did you assess the consideration payment for the access rights

Answer 14

I assessed the additional value which would be released by the acquisition of rights to LB Bexley. Orbit Homes, as the owner of the the ransom property, were to seek a proportion of the uplift in value from the acquisition of the rights (shared value basis)

Question 15

What is ransom property

Answer 15

Ransom property can include rights or land; any legal interest which potentially increase the value of other land (usually by unlocking development value).

Question 16

Describe case law for ransom property (uplift ranging 30-50%)

Answer 16

Stokes v Cambridge - There was a development parcel of land which required the purchase of an additional strip of land to provide access to the development site. The Lands Tribunal determined that the price for the ransom strip was one third of the increase in value of the subject development land attributable to acquisition of the ransom strip.

In Ozanne v Hertfordshire County Council (1988) the Lands Tribunal awarded 50% of the increase in value of the development value on the basis there was only one practical access.

Question 17

How did you work out the uplift in value

Answer 17

Consideration payment was based on a residual land valuation of the LB Bexley development (undertaken by LB Bexley)

Existing use value was agreed as £30,000.

Residual land value was 1.4m (scheme 24 affordable units, 3 bed houses, 1 and 2 bedrooms).

To work out the consideration, I calculated the uplift in value from the acquisition of access rights = residual value minus exisiting use value

Consideration payment was based on case law, at 1/3 the uplift in value was the consideration, which was £450,000 (Stokes v Cambridge)

Proposed HoT to LB Bexley, couldnt agree on values with Orbit Homes

Question 18

Describe the Network Rail project at Tide Mills, Newhaven

Answer 18

project was the closure of a level crossing and the construction of a new footbridge over the railway

Question 19

How did you advise the Client on the Tide Mills project

Answer 19

1. advised NR the most direct route to the parcel of land required for surveys. In turn this reduced potential reinstatement and crop loss claims
2. advised suitable licence fee for the access
3. advised NR that a compensation payment would be payable to the landowner as crops would be ruined from the survey works

Question 20

NR Tide Mills

What surveys were required at Tide Mills

Answer 20

cable percussion / trial pits, placement of log piles and hibernacula

Question 21

Tide Mills

How did you agree access with the landowner

Answer 21

Licence agreement

Undertook a site inspection and whilst on inspection, discussed land ownership, surveys required on land position of surveys and access routes with landowner

Question 22

NR Tide Mills

How did you advise in terms of the access route

Answer 22

NR’s contractor – main road to the north of the field, planned to go straight into the field from the main road, which would have damaged lots of crops. There was a track adjacent to the main road, which the landowner had a right of way across. I advised Network that it would be best to take vehicles down the track to reduce the disturbance to the field.

Question 23

NR Tide Mills

How did you advise on the licence fee

Answer 23

Advised NR on access licence fee - £250 per week, in line with other survey fees paid to landowners. Requirement for development of footbridge. Some survey works undertaken, then project was seen as unviable and stopped.

Question 24

NR Tide Mills

How did you calculate the crop loss payment

Answer 24

The project was cancelled prior to the main survey works going ahead, so the crop loss was not required to be paid to the landowner, however, to calculate the crop loss i would first measure the area that was ruined by the survey works and would confirm the crop in the field. Winter wheat was in the field so I would compensate the cost of winter wheat which would not be harvested.

Determine the Gross Margin for the Crop for WW using the ABC May 2021 book and multiply the gross margin by the area of the field

Question 25

Southern Water

What is listed on a s159/s168 notice

Answer 25

Notice itself contains Address and name of landowner, Location of the works, description of the works (ie visual survey/borehole), plan identifying working area and proposed access route, date of notice and notice period.
Notice served alongside covering letter and Code of Practice (Southern Water Specific). Early entry provisions are requested for s159 notices, document also included

Question 26

Southern Water - describe the Kingston to Adisham project

Answer 26

purpose of the project is to create a new water transfer pipeline to alleviate drought in the area. Ecology walkover surveys and then GI surveys were required to review the design of the new route

Question 27

Southern Water - How did you organise the walkover survey, what did you advise the client

Answer 27

20 interests along the route which were required to consent to the walkover survey. I sent engagement letters to all landowners to brief them on the pipeline survey and asking them to contact me to consent to the survey. Some landowners did not respond to the surveys so I advised SW that access could only be granted by issuing s168 notices under the Water Industry Act 1991.

I advised the client of the 7 days notice requirement prior to entry. Provides security to undertaker that they will be able to access and undertake surveys.

Question 28

Southern Water - Kingston to Adisham

Did you advise the client on anything else relating to the surveys

Answer 28

I advised SW on potential crop loss claim from undertaking survey works prior to harvest. Noted the different crops growing in the fields. Assumed a 20m wide survey area.

Question 29

Southern Water M2, J5 scheme

Describe scheme

Answer 29

Purpose of the project is to divert a water main which is impacted by the HE roundabout scheme.

Question 30

Southern Water - J2, M5 Scheme

What did you advise the client

Answer 30

I advised the project team on the 3 month statutory requirement under s159 of the Water Industry Act 1991 and potential early access consent. Not granted by landowners, access is from December 2021

Question 31

Southern Water

How did you advise the client in respect of the potential compensation claims from the works at J5, M2

Answer 31

S180 & Schedule 12 of the Water Industry Act 1991 – covers provisions for compensation relating to pipe laying in private land. Direct and unavoidably incurred due to the works (not too remote)
• Where pipe is laid in a street, loss of profits claims
• Depreciation in land value – follows compensation set out in s5 of Land Compensation Act 1961 (valuation date=date of entry). 50% of the Market Value of the land per acre, over the area of the pipe
• Disturbance costs – reinstatement, loss of profits and crop losses
• Professional Fees – reasonable surveyors and legal fees (hrly rate) - Partner £180 per hour

Question 32

Describe s159 and s168 notices

Answer 32

Entry to land via s168 of Water Industry Act and Schedule 6 (Supplemental Provisions relating to rights of entry) for determining whether it is practicable or appropriate to lay pipes. At least 7 day notice to enter land except in an emergency. Prefer to approach landowners for consent prior to issuing notices.

S159 Notice within 3 months notice to lay ‘ a relevant pipe’ - sewer or main (statutory easement as sits with title deeds) - s159 of 1991 Act gives notice of intention to carry out works and conveys a statutory easement to protect works post construction
S159 Notice within 42 days notice to alter existing pipes

Question 33

Describe Network Rail access rights to land

Answer 33

S14 of Railway Regulation Act 1842 - the Department for Transport (DfT) powers
that authorise Network Rail to enter lands adjoining the railway to carry out works necessary for the purpose of ensuring public safety where an accident or land slip has occurred or is anticipated. Allows access, temporary occupation of private land. SoS consent required through DfT

S15 of Railway Regulation Act 1842 - Section 15 of the 1842 Act gives the power, where
necessary to ensure public safety, for Network Rail to permanently acquire additional land (within the original limits of deviation and which has not previously been owned by a railway Company) for permanent works.

s71 of British Railway Act 1981 - Section 71 of the British Railways Act 1981 is a power to
carry out surveys and soil tests on land adjoining the railway without having to obtain agreement from the landowner or occupier. It applies whenever land needs to be surveyed for the purpose of determining its suitability for the construction of works in the land being surveyed, 28 days notice

Question 34

Describe powers for AA to gain access to land

Answer 34

Housing and Planning Act 2016, s172-179
The Housing and Planning Act 2016 provides a new ‘general’ right for all acquiring authorities to enter upon land for survey or valuation purposes in connection with a proposal to acquire an interest or a right over land. The aim was to bring forwards a universal and standardised procedure for acquiring authorities to enter onto land for surveys prior to obtaining compulsory powers.
- Compensation - damages
- 14 days notice – notice includes warrant and statement of recipients right for compensation and include details of surveying

Planning Act 2008 s53
Section 53, Rights of Entry – s.53 provides rights to enter land in order to undertake a survey in connection with an application (or a proposed application) for a DCO. Importantly, authorisation “in writing” is required from the Secretary of State before the rights to enter can be exercised. Historically, this authorisation takes time – usually a minimum of three months – and the process is expensive

Question 35

Describe what is on a title register and title plan

Answer 35

Title Register -

1. Property Register - description of the land, with reference to the title plan, details of any exclusions from the title, matters which benefit the land (easements / rights)
2. Proprietorship Register - class of title (freehold or leasehold), name of owner/address, purchase price)
3. Charges Register - leases, charges

Title Plan
Red line boundary
Scale
North Arrow

Question 36

What is the Gross Margin

Answer 36

Is the price per acre (profit of the crop), calculated by deducting the variable costs (seed fertiliser and crop production) from the gross income of the crop (output costs)

Question 37

Define the crop yield

Answer 37

Density of the crop, measured in tonnes

Question 38

Define the variable costs

Answer 38

Costs relating to the growing of the crop - cost of seed, fertiliser and crop protection

Question 39

How to work out crop loss claim

Answer 39

1. require area of field impacted (working area determined by combine harvest data)
2. yield data - density of crop
3. Unit price per tonne

Work out output costs and minus variable costs to work out gross margin (profit from crops)

ABC book indicates Gross Margin at 364/acre for WW and multiply by area impacted to get area for crop loss

Question 40

When is winter wheat harvested and sown

Answer 40

Harvested / Sown - September / October

Question 41

What is an easement

Answer 41

It is an interest in the land, allowing a person to lay, install, maintain, replace or repair infrastructure on or over land belonging to or in occupation of another – includes gas, electricity or water
• normally registered on title
• in Perpetuity
• Potentially lift and shift clauses / development clauses
• compensation under CPO code – land taken, injurious affection, disturbance

Question 42

What is a wayleave

Answer 42

An contractual licence which a landowner grants permission for use land for specified activities such as laying or installation of electricity infrastructure on / over another. It is normally for a fixed term on a license, not in perpetuity. Annual rent or compensation is usually paid. Not binding on successors, does not run with the land – stays with the landowner.

Question 43

When do wayleaves terminate

Answer 43

Wayleaves automatically terminate –
• Grantor dies
• Grantor ceases to owns the land
• Grantor permits another to occupy the land with a superior estate or interest.

Question 44

Describe three types of wayleaves

Answer 44

Expressed Wayleaves – have specific terms agreed, usually in a deed, signed by both landowner and occupier and usually terminate after 6/12 months. Law of Property (Miscellaneous Provisions) Act 1989 – indicates the formalities required to create a deed.

Implied Wayleaves – previous owner sold the land (transfer of land), landowner has died under a gift by will or on the grant of a lease. A payment must be made by the license holder to the new owner

Statutory Wayleaves – Determined by the Secretary of State for the Department for Business, Energy and Industrial Strategy. Include a wayleave hearing, have a 15 year right and recorded on title.

Question 45

Describe necessary wayleaves - Electricity Act 1989

Answer 45

Electricity undertakers get granted wayleave agreements through negotiation of a contractual arrangement with the landowner and/or the occupier of the land; this is called a voluntary wayleave.

However, where an agreement cannot be reached through negotiation, the licence holders, who have a public service role to undertake, have access to compulsory procedures. The electricity licence holders may promote a Compulsory Purchase Order under Schedule 3 to the 1989 Act or apply for a “necessary” (compulsory) wayleave under Schedule 4 to the 1989 Act.

Apply for necessary wayleave through the SoS - wayleave hearing and SoS determines need for a wayleave

Question 46

What is deed of grant

Answer 46

A legal document used to transfer rights from one landowner to another.