Access and Rights over Land

Question 1

What is the difference between a wayleave and an easement?

Answer 1

Wayleaves are not permanent and are time limited. An easement is a right that someone holds over land owned by somebody else. These are attached to the land and are normally created by deed.

Question 2

What is the difference between a lease and a licence?

Answer 2

Leases grant exclusive possession of the property whereas a landlord can enter the property at anytime under a licence.

Question 3

What is the case law for lease v licence?

Answer 3

Street v Mountford 1985

Question 4

What statutory powers/CPO do gas companies have?

Answer 4

DCO (more than 800mm in diameter and over 40km in length for pipeline), Gas Act 1986

Question 5

What legislation is in place for water companies?

Answer 5

Water Industry Act 1991

Question 6

What legislation is used for laying a water pipe and what notice is required?

Answer 6

s159, 3 months notice for a new pipe, 42 days notice for altering an existing pipe, then issue s168 notice 7 days prior to entry

Question 7

Do water companies need to give notice in an emergency?

Answer 7

No

Question 8

What section of the Housing and Planning Act 2016 is used to gain entry for surveys?

Answer 8

s172

Question 9

What legislation might you also be able to use to gain entry for surveys?

Answer 9

DCOs can use s53 of the Planning Act 2008

Question 10

Did you have to pay a licence fee when arranging survey access on the Isle of Wight?

Answer 10

No, however I am aware that licence fees can be paid (e.g. Rampion survey licence had a base fee plus an additional payment per linear metre)

Question 11

How did you mitigate the risk of a compensation claim for the archaeology surveys?

Answer 11

I liaised with the landowner prior to understand if they had any specific requirements for the land on specific dates, to see if the programme of works could be adapted to accommodate this.

Question 12

For the Godshill pipeline installation, if the works had happened in the winter, how would you have advised your client on soil protection?

Answer 12

I would have referred to one of my rural colleagues with the relevant experience to provide guidance.

Question 13

What are accommodation works?

Answer 13

Works which can be carried out to help mitigate the impact of the project on the landowner, for example having gates for crossing points.

Question 14

What powers are available to Network Rail if you couldn’t have arranged access?

Answer 14

Railway Regulation Act 1842 - section 14

Question 15

What are the different types of wayleaves?

Answer 15

• Express
• Implied
• Necessary/Statutory

Question 16

What are the different types of easements?

Answer 16

• rights of way
• rights to use services
• rights of access

Question 17

What is a lease of easement?

Answer 17

An easement for a term of years

Question 18

What is the Sawkhill case?

Answer 18

High Court case in 2020 against Highways England. s53 was authorised by SoS for entry, however HE later required further access and used s172, which was challenged as a lot less onerous

Question 19

For entry for archaeological surveys, what sort of payments were made?

Answer 19

£400 for up to 6 boreholes/trial pits, £150 for individual borehole/trial pit