Access And Rights Over Land Flashcards
What is an Easement?
- An interest in land gives a right to do something on land belonging to someone else
- Registered on title
- In perpetuity
- Binds successors
- Potentially ‘lift and shift’ or ‘development’ clauses
Compensation: land taken, IA (generally visual impact), disturbance
What is a Wayleave?
- A contractual licence
- Does not run with the land but the person who agrees it
- Annual rent/compensation payment approx £6/yr
- Usually includes NTQ provisions
- Fixed term or subject to terminate
What is a Necessary Wayleave?
- An operator can apply to the SoS for a necessary wayleave
- following receipt of a NTQ from the landowner and if they cannot agree new terms with the landowner
- The operator must provide proof as to why the lines must be kept in place
What compensation is payable for a permanent easement?
- The Value of Land Taken
- Severance and Injurious Affection
- Disturbance
What compensation is payable for a wayleave?
- Based on the rules of equivalence
- Annual payments are based on negotiated sums proposed by the Energy Network Association
- Agreed between Energy Network Association, NFU and CLA and are published annually
What Act governs the water industry?
- The Water Industry Act 1991
What Act governs the supply and distribution of electricity?
- The Electricity Act 1989
What is a lease?
- A lease is a contractual arrangement where a tenant agrees to pay rent to a landlord for exclusive occupation of a property for a fixed term.
- A key feature of leases is that tenants benefit from the right to possession of the property, to the exclusion of all others including the landlord during the fixed term. This is the major difference to licences where tenants do not receive ‘exclusive possession’ and landlords may enter the property on reasonable notice.
- Leases also create a legal interest in the property which means any sale of the property, during the term is subject to the tenant’s lease
What is a licence?
- A licence is personal permission for someone to occupy accommodation and does not give an occupier a legal interest in the land.
- Unlike a lease, a licence does not grant the tenant ‘exclusive possession’ of the property. A licence is merely a right to occupy.
- high degree of flexibility and simplicity. Most licences give both the landlord and tenant the right to terminate the agreement at short notice and have less onerous conditions.
What is the difference between a lease and a licence?
- exclusive possession
- licenses provide more flexibility/less onerous
- leases create a legal interest in land of
- 7 years or more must be registered
What did you include in your HOT’s for the licence?
- Licensor and Licensee names
- The Land/Property
- Use for access only including others authorised by Licensee
- No interference with HS2’s use of the access
- Access in common with HS2
- Licensee to do nothing illegal/ cause nuisance or damage
- Comply with any conditions HS2 imposes
- HS2 not given up possession/licensee no right to exclude
- Termination on 7 days or immediate if terms breached
- Licensee to indemnify HS2 against losses
- Restriction of liability within law
- Plan of Land/Property
- No rent
How have you provided strategic advice on complex elements of a project?
- When working on the issue with the borehole in Southam
- I represented my department and understood that the wider implications of not re-providing a private water source to the dwelling would be unethical and would also result in a significant compensation claim for my client
- I communicated this to stakeholders when deciding how to approach the complex issue
How did you agree heads of terms and final documentation?
- Regular communication with the affected parties appointed agent to discuss the types of terms that HS2 would require a licence to cover
- I consulted with a lawyer if advice was required, and both parties agreed
- Due to the agreements being reasonably straightforward/not too onerous once terms agreed I drafted the licence, ran past lawyer, and both sides agreed
Why did you arrange to document the temporary access right at Birmingham, what were the risks of not doing so?
- The party using the access may gain an equitable interest under proprietary estoppel (claimants detrimental reliance on an expectation encouraged by the defendant)
- The user would be deemed to be trespassing
Why did you document the temporary access right via a licence, rather than a more formal, Land Registry held agreement?
- It was merely an agreement which was temporary in nature
- Used for access only no exclusive possession and no fixed period so a lease would have been unsuitable and unnecessary/ not proportionate
- There was no intention to give the licensee a legal interest in land or create a landlord and tenant relationship
What consultations did you undergo on the GVD to protect your client from challenge and why?
- A three stage workshop with various stakeholders around the business, to ensure:
That the land was needed,
The method of acquisition was correct and justified - The land take was appropriate and proportionate for the requirement
- The proposed land take goes through checks by the ILA on behalf of the DfT who ensure all appropriate scrutinisation has happened before serving notices
Why did you consider an access licence at Kenilworth Road rather than a formal easement?
- The access licence provided a suitable short-term solution to allow the landowner access
- detailed design of the road realignment was still in early stages
- once more detail obtained I will be able to assess if an easement to cross the land would be suitable
Did you consider that the adjacent landowner at Kenilworth Road was entitled to compensation due to the severing and did you report this to your client?
- I raised the severence of the access early on in workshop stages and expressed my concerns about removing the landowners road access to their field.
- without re-provision of access the claimant may have a claim under severance, which would be valued on the diminution of the retained property
- to mitigate the impact I recommended a temporary access licence until a long term solution can be found
What is a public right of way?
You can walk on all public rights of way. Some public rights of way are also open to horse riders, cyclists or motorists.
footpaths - for walking, running, mobility scooters or powered wheelchairs
bridleways - for walking, horse riding, bicycles, mobility scooters or powered wheelchairs
restricted byways - for any transport without a motor and mobility scooters or powered wheelchairs
byways open to all traffic - for any kind of transport, including cars (but they’re mainly used by walkers, cyclists and horse riders)
You can find the route of public rights of way:
on Ordnance Survey and other maps
What is a ransom strip?
- A ransom strip is a strip of land that has been retained when a larger piece has been sold, this may be deliberate or may be accidental.
- It is often a thin section around the boundary, at a potential access, in between parcels of private land or between private land and public highway.
- The width of the ransom strip can be as narrow as 150 millimetres and can potentially hold a huge development to ransom.
What are the 4 essential conditions for an easement?
- There must be a dominant and a servient tenement;
- The easement must accommodate the dominant tenement, that is, be connected with its enjoyment and for its benefit;
- The dominant and servient owners must be different persons;
- The right claimed must be capable of forming the subject-matter of a grant.
