Access and Rights Over Land

Question 1

What are the key difference between the Sewage (Scotland) Act and the Water (Scotland) Act?

Answer 1

In Water Scotland Act 1980, SW have liability for bursts as they control what is in pipes whereas in sewage pipes they do not, therefore no liability

Question 2

What section in the Land Reform (Scotland) Act 2003 refers to public access rights?

Answer 2

Section 7

Question 3

What are your heads of claim?

Answer 3

Losses
Reinstatement
Clients time/Disturbances
Injurious affection

Question 4

What was involved in your claim for the overland sewer?

Answer 4

Losses - losses for grazing and BPS

Clients Time - for various meetings on site

Disturbances - for having to go further out the way to move sheep into field behind works

Re-instatement - ploughing, power harrowing, rolling, grass seed, de stone, additional spray for weeds

Injurious Affection - negative impact on land value

Question 5

Which Schedule in the Electricity Act 1989 gives License Holders the compulsory purchase powers to install new power lines?

Answer 5

Schedule 3

Question 6

Which Schedule in the Electricity Act 1989 regulates existing power lines?

Answer 6

Schedule 4

Question 7

Under which Schedule of the 1989 Act can an electricity provider force a necessary wayleave?

Answer 7

Schedule 3 and 4 (depending if new or existing)

Question 8

Tell me about necessary wayleaves

Answer 8

• Applied for when parties cannot come to a consensual agreement
• 21 day notice served to landowner
• Application sent to Scottish Ministers
• More expensive and time consuming than consensual agreement
• Generally last 15 to 40 years

Question 9

How long would you expect a necessary wayleave under the Electricity Act 1989 to last?

Answer 9

40 years

Question 10

Which section of the Water (Scotland) Act 1980 allows landowners to claim compensation?

Answer 10

Section 10

Question 11

Which section notice would SW issue under the Water (Scotland) Act 1980 to advise landowners they intend to carry out investigation works?

Answer 11

Section 16

Question 12

Which section notice would SW issue under the Water (Scotland) Act 1980 to advise landowners they are installing a new pipeline?

Answer 12

Section 23

Question 13

Which section notice would SW issue under the Water (Scotland) Act 1980 to advise landowners they are going to access and carry out works to existing pipes?

Answer 13

Section 38

Question 14

Which section notice would SW issue under the Sewage (Scotland) Act 1968 to advise landowners they are going to access and carry out works to existing pipes?

Answer 14

Section 48

Question 15

Which section of the Sewage (Scotland) Act 1968 allows landowners to claim compensation?

Answer 15

Section 20

Question 16

Which section notice would SW issue under the Sewage (Scotland) Act 1968 to advise landowners they are carrying out new works?

Answer 16

Section 3

Question 17

Which act regulates the gas board in Scotland?

Answer 17

Gas Act 1989

Question 18

Which schedule of the Gas Act 1989 refers to new mains being installed?

Answer 18

Schedule 3

Question 19

What would be your reservations on a claim?

Answer 19

Reservations:
Future losses
Agents fees and disbursements
Drainage
Rights to alter claim until settled

Question 20

What is the difference between Network Rail and other utility providers?

Answer 20

NWR have much less statutory powers therefore cannot force access in the same way as other utilities so you can charge more for their access

Question 21

What are the key differences between a wayleave and a servitude?

Answer 21

A wayleave is a contract between a land own/occupier which gives a third party a right of access across land to install and maintain infrastructure. This is a temporary agreement that must be re-negotiated with the new land owner/occupier upon sale of the land.

Whereas a servitude is a permanent agreement tied to the land title in perpetuity and is transferred to a new owner if the land is sold.

Question 22

How much would you expect for a Scottish Water compound per week?

Answer 22

£300 - £800

Question 23

How much would you expect for a borehole payment?

Answer 23

£250

Question 24

What documents would you expect to see prior to contractors taking access to your clients land?

Answer 24

RAMS
Accommodation of Works
Signed license
Photographic record of condition

Question 25

What would you expect to see outlined in Accommodation Works?

Answer 25

Access routes
Fencing requirements
Bio-security measures
Agri compliance measures
Protection of boundary fences and dykes
Track matting to be laid
Ensure site will be cleared of rubbish
Drainage matters
Speed limit on site
Works commencement date to suit the farming operations
Livestock precautions

Question 26

How would you calculate a crop loss claim?

Answer 26

Measure area impacted
Identify crop in the field (or what would have been)
Calculate projected yield for the grain and straw for the crop
Check current price per tonne for grain and straw
Multiply area by expected yields by market price

Question 27

How did you value the injurious affection payment for the Overland Sewer?

Answer 27

Assess the market value of the land with and without the sewer and the payment is the difference, generally 80% of ag value

Question 28

For what reasons can a landowner use a Section 11 form to temporarily close a core path?

Answer 28

1. Paid event
2. Safety and security during event
3. Prevent public interference

Question 29

Would you take a deposit from a commercial tenant such as the dog park tenant?

Answer 29

You can but I didnt from the dog park tenant as they had invested a lot of money in moving site having to install new fences, create a car park and apply for PP

Question 30

Tell me about Rights of Way

Answer 30

• must run from one public place to another
• must follow a defined route
• must be on the assumption of right, not based on express or implied consent
• must have been used for 20 years

Question 31

Who is responsible for Rights of Way?

Answer 31

Local Planning Authority are responsible for making sure they do not become obstructed and can maintain them

Question 32

What section of the Act prevents farmers from putting a bull in a field with a Right of Way?

Answer 32

Section 44

Question 33

Is there a way of removing a Right of Way?

Answer 33

Can be re-directed for example round a farmyard
Can extinguish if you get planning for that land but must provide a new access

Question 34

Tell me about public access rights?

Answer 34

The general public in Scotland can access all land in line with the responsible access guidelines as outlined in the Scottish Outdoor Access Code

With the exemptions of
- private houses and gardens
- industrial land
- visitor attractions with admission fee
- field with growing crops (field margins ok)
- recreational pitches inc golf courses
- farmyards

Question 35

Are public access rights the same for pedestrians, vehicles and horse riders ?

Answer 35

Public access rights are only for pedestrians, cyclists and horse riders etc - not vehicles

Question 36

Can the public take access across stubble and grass fields?

Answer 36

Yes apart from when the grass is at a late stage of growth

Question 37

Which Part of the Scottish Outdoor Access Code refers to Exercising Access Rights Responsibility?

Answer 37

Part 3

Question 38

What is the difference between a Core Path and a Right of Way?

Answer 38

Core paths have an extra level of legal protection, as authorities have powers to keep these paths free from obstruction, even if landowners refuse to take action.

Question 39

What rights do SW have to access your clients land with the overland sewage pipe?

Answer 39

They have Statutory Powers under Section 3 of the Sewerage (Scotland) 1968 to take access to install a new sewer, on, over or under land.

The landowner can object, and if after 2 months they have not lifted their objection, Scottish Water must submit a summary application to the sheriff who can grant permission.

Question 40

What statutory powers do network rail have? How did you calculate the license fee for the emergency access?

Answer 40

Network Rail don’t have the same Statutory Powers that SW, SGN, SPEN etc have therefore they cannot force you to allow access on their land.

NWR regularly took access to the bridge in question so I considered the license fee we charged them last time and inflated this based on the last minute nature of the access

Question 41

What would you do if people ignore your S11 closure of the core path?

Answer 41

We did face this situation

It was an army event therefore there was soldiers on the gates to manage these people

If no soldiers, the people are in breach of Scottish Outdoor Access Code and therefore illegally entering the property.

Civil matter as Scottish Outdoor Access Code is under civil law that cannot generally bring criminal convictions

Question 42

How did you agree your fee for dealing with the emergency access for NWR?

Answer 42

My firm have an agreement with NWR that the fees are paid at Rydes+50 for license fees and comp claims

Question 43

What is a client mandate?

Answer 43

Client confirming they are agreeable to firm accepting money on their behalf and deducting fee from payment before it transferring to client

Question 44

What is a servitude?

Answer 44

A heritable right that allows someone to use another person’s land in a specific way. They are tied to the land title in perpetuity.

Question 45

What is a wayleave?

Answer 45

A wayleave is a contractual agreement between a licensor and licensee that allows the licensee to install, access and maintain equipment on or under the land.