Access And Rights Over Land- level 1

Question 1

What legislation and/or framework exists for acquiring sites or access for the
provision of power, water, pipelines, other third party or communications
infrastructure?

Answer 1

Electricity Act 1989, Water Industry Act 1991, Water Resources Act 1991 & Gas Act 1986.

Question 2

What methodology and valuation approaches might be used for these purposes?

Answer 2

Water industry Act- Water pipelines sterilisation equates to 50% of land value- precedent set in Thames Water Vs St Johns college Oxford. St Johns College Oxford V Thames Water. 1990 – Although not water schemes, it is still considered a reasonable figure as the risk is similar. Gas is higher at 80% due to the higher risk. This is just a indication as to what it should be, not a definite.

WRA 1991 based on section 5 of land compensation act 1965

Question 3

What rights over land may restrict the development/use of a site and what
effect can this have on value?

Answer 3

Easements over utility infrastructure, underground gas or water mains sterilise land and reduce development value as they will either need to be moved (often at Landowner cost) Or land can not be built on.
Restrictive Covenants - May restrict use etc - Reducing price.

Public Rights of Way -can -vley impact on property prices

Question 4

How may a restrictive covenant be removed or modified?

Answer 4

You can remove or modify a restrictive covenant by applying to the Lands Chamber of the Upper Tribunal under Section 84 of the Law and Property Act, 1925. You’ll need to provide a good reason for the modification or removal, such as:
* The covenant is outdated compared to the property or neighbourhood
* The covenant prevents reasonable use of the land
* The covenant’s beneficiaries agree to the modification or removal

Question 5

What are the heads of terms for agreeing the routes for lines and cables and other third party infrastructure with landowners?

Answer 5

Heads of terms for easement :
- Date
- Grantors details
- Grantees details
- Tenant or VP
- Property details and address
- Surveyor and solicitor details
- Easement consideration
- Proposal – length of cable, easement width
- Plan
- Lift and Shift if included
- Indemnities
- Legal and Surveyors Fees
- VAT – All terms exclusive of VAT.
- Signatures

Question 6

Difference between an easement and a wayleave

Answer 6

An easement, or deed of grant, is a permanent agreement related to land, typically used for infrastructure projects like water, gas, or sewage pipes. It allows utility companies ongoing access to service these installations, often with a one-time payment to the landowner. The agreement is tied to the land and cannot be terminated.

A wayleave, in contrast, is a temporary, terminable license granted to the landowner or occupier, not the land itself. It permits utility companies to lay cables or pipes, usually with an annual payment. Wayleaves do not automatically transfer to new property owners upon sale and can be renewed or terminated by either party, although utility companies may have some protections against termination.

In summary, easements are permanent and tied to the land, while wayleaves are temporary and tied to the landowner.

Question 7

What payments might relate to a wayleave and an easement

Answer 7

An easement would normally be settled by a one-off premium payment and a wayleave would be annual wayleave payments.

Question 8

Talk me through your understanding of a S159 / S168 WIA 1991 notice

Answer 8

Talk me through your understanding of a S159 / S168 WIA 1991 notice.
S159 – powers to lay pipes in other land
- Power to lay and keep pipes above or below ground; to inspect, maintain, adjust, repair and alter
- Most commonly used method of obtaining entry to lay pipes
- Reasonable notice:
o 3 months – new pipe
o 42 days – existing, except in an emergency (where such notice is not required)
Section 168
S168 – power of entry for surveys and tests including making bores and taking away samples

Question 9

What are the implications of one of a WIA notices?

Answer 9

Providing process is followed it allows water companies can enter onto third party land (without landowner agreement) to carry out works to lay pipe in land or to entry for surveys including boreholes.

Question 10

Talk me through how you would obtain further rights of a permanent nature for strategic pipelines.

Answer 10

I would agree an negotiate easement over the existing pipeline on the basis of 50% of sterilised land value for water and 80% for Gas .

Question 11

What do you understand by the Water Industry Act 1991?

Answer 11

The Water Industry Act 1991, which sets out the main powers and duties of the water and sewerage companies

Question 12

What do you understand by the Electricity Act 1989?

Answer 12

The Electricity Act 1989 is a UK law that governs the generation, transmission, distribution, and supply of electricity. The act’s goals are to: Regulate the electricity industry, Ensure efficient operation, Promote competition, and Safeguard the interests of consumers and stakeholders.

Question 13

What do you understand by the Gas Act 1986?

Answer 13

The Gas Act 1986 is a UK law that governs the gas industry, including the supply of gas through pipes, the regulation of hydrogen, and the establishment of the Gas Consumers’ Council.
* Powers of entry: The Secretary of State can authorize officers to enter premises with gas main service pipes to inspect fittings and apparatus, or to disconnect the premise to prevent danger.
* Schedule 4: This schedule defines terms such as “highway authority”, “navigation authority”, and “railway authority”.
* Part II: This part covers procedure and compensation in England and Wales

Question 14

How can an easement be created?

Answer 14

Express grant
The owner of the servient land grants an easement to the owner of the dominant tenement through a deed, will, or another written document. The grant is assumed to be permanent unless otherwise stated. For example, if a landowner sells part of their property but wants to retain some rights, they can create an express grant to specify those rights.
Implied grant
Also known as an easement of necessity, this type of easement arises when rights are implied by law and not specified in a deed. For example, if a landowner sells a parcel of land that’s next to another parcel, the only way to access the retained land may be through the part that was sold.
Prescriptive easement
This type of easement is acquired through long use or enjoyment. To have a prescriptive easement noted on the title, the owner of the dominant land must show that they or previous owners have exercised the right for 20 years in the same manner and without force or stealth

Question 15

What is the difference between the dominant and servant tenements?

Answer 15

The dominant plot of land is the land that has the benefit of the easement. The servient plot of land is the land that has the burden of the easement.

Question 16

Are easements permanent?

Answer 16

Are easements permanent?

Question 17

Tell me about payments for a wayleave and an easement.

Answer 17

Wayleave payments are intended to reflect the type of equipment and impact on the land. The landowner will be paid annually in arrears and the payment will be for rent. Compensation can be paid if the equipment is deemed to interfere with agricultural operations.
Wayleave payments for overhead lines are updated on an annual basis in April
Payment rates can be found on the Energy Network Association website.
Split between owners and occupiers – if you are an owner-occupier you receive both.

Easements- One off payment agreed by negotiation

Question 18

Is a wayleave permanent?

Answer 18

No wayleaves are terminable, they are normally annual agreements that can be terminated by either party.

Question 19

What type of document records a wayleave?

Answer 19

A Wayleave agreement.

Question 20

What are the 4 essential conditions for an easement?

Answer 20

• There must be a dominant and servient tenement;
• The easement must accommodate the dominant tenement;
• The dominant and servient owners must be different people;
• The right must be capable of forming the subject matter of a grant

Question 21

What are the three types of easement and how do they differ?

Answer 21

Express grant, Implied Grant & Prescriptive Easement

Express Grant – Agreed expressly between two parties, through a deed, grant is assumed permanent unless stated otherwise.
Implied grant- Also known as an easement of necessity, this type of easement arises when rights are implied by law and not specified in a deed. For example, if a landowner sells a parcel of land that’s next to another parcel, the only way to access the retained land may be through the part that was sold.
Prescriptive Easement- This type of easement is acquired through long use or enjoyment. To have a prescriptive easement noted on the title, the owner of the dominant land must show that they or previous owners have exercised the right for 20 years in the same manner and without force or stealth
Implied grant
Also known as an easement of necessity, this type of easement arises when rights are implied by law and not specified in a deed. For example, if a landowner sells a parcel of land that’s next to another parcel, the only way to access the retained land may be through the part that was sold

Question 22

How can a Court Order be used to obtain an easement of necessity?

Answer 22

A court can order an easement over real property if it’s necessary for the development or use of other real property. The court will consider whether the applicant has tried other ways to get an easement or something similar, and if they haven’t been successful. The court order must specify the easement, and the applicant must pay any compensation the court determines is appropriate, as well as the costs of the proceedings.
An easement of necessity is an implied grant, which means the rights are implied by law and not specified in a deed. Easements of necessity often arise when a landowner sells their property.

Question 23

How does compensation work in this respect?

Answer 23

The court order must specify the easement, and the applicant must pay any compensation the court determines is appropriate, as well as the costs of the proceedings.

Question 24

What is a deed by necessity?

Answer 24

An easement by necessity arises when a landowner divides their property, creating a landlocked parcel without access. Courts may imply an easement if it’s clear that access was intended but not explicitly granted.

To establish this easement, the claimant must prove: (1) the landlocked and access properties were once owned together, (2) access is essential, not just convenient, and (3) the necessity existed when the properties were divided. If any of these elements are missing, the easement won’t be recognized, and proving these can be challenging, especially if the division occurred long ago

Question 25

What is an easement by prior use?

Answer 25

Prior use easement. Another type of implied easement is one based upon prior use. This type of easement was recognized by courts after finding the necessity framework was ill-suited for other improvements, such as powerlines or utility pipelines.

Question 26

What are the elements required for am easement by prior use ?

Answer 26

In order to prove a prior use easement, the party seeking an easement must show each of the following elements: (1) unity of ownership of the alleged dominant and servient estates prior to severance; (2) the use of the claimed easement was open and apparent at the time of severance; (3) the use was continuous, so the parties must have intended its use pass by grant; and (4) the use must be necessary to the use of the dominant estate.

Question 27

What is an easement by prescription?

Answer 27

Prescriptive easement. Prescriptive easements are essentially like obtaining an easement through adverse possession. Differ from implied easements as it assumes no consent from dominant tenaments.
In order to obtain a prescriptive easement, the person claiming the easement must prove that he or she has used the easement for at least 10 years and the use was: (1) open and notorious; (2) continuous; (3) exclusive; and (4) adverse.

Question 28

How does a prescriptive right this differ from adverse possession?

Answer 28

A prescriptive easement allows someone to use another’s land in a specific way without claiming ownership. To establish it, the use must be open, continuous, and without permission for at least 20 years. For instance, using a neighbour’s land as a shortcut over time could lead to a prescriptive easement.
Adverse possession, on the other hand, allows the claimant to gain ownership of land by possessing it without the owner’s consent for a set period, typically 12 years. Examples include using a private road or farming on unused land.

Question 29

When do prescriptive easements become legally binding?

Answer 29

Prescriptive easements become legally binding when the Land Registry agrees to an application to claim a right of way by prescription. The applicant must show that they or previous owners have exercised the right for at least 20 years without interruption, in the same way, and without force, stealth, or permission. The right claimed must also be one that could have been lawfully granted.
If the Land Registry agrees, they will issue a notice to the servient landowner.

Question 30

What are the criteria for a prescriptive easement?

Answer 30

To claim a prescriptive easement, the claimant must prove that they have exercised the right for at least 20 years without interruption, in the same way, and without force, stealth, or consent from the neighbouring landowner. The claimant must also demonstrate that they used the right as of right, and that the right claimed could be lawfully granted

Question 31

What is an easement by estoppel?

Answer 31

An easement by estoppel is a legal right to use another person’s property that is established when the owner of the property takes actions that lead someone to believe they have an easement, and the person then relies on that belief to their detriment.

For example, a landlord might allow a tenant to believe they have a right of way, and then it would be considered unconscionable for the landlord to deny the tenant access.

Question 32

What is the difference between a deed of grant, conveyance deed or transfer deed?

Answer 32

• Conveyance deed
  Also known as a deed of conveyance or indenture of conveyance, this deed is used to sell unregistered land. It can also be used to transfer property ownership in other circumstances, such as a mortgage, lease, exchange, or gift. Conveyances are generally easier to understand than earlier title deeds, and are smaller, more standardized, and include a straight line top edge and a seal.
• Transfer deed
  This deed is used to sell registered land. A transfer deed may include the buyer’s name and address, the price agreed upon, and the completion date. It may also include the seller’s Power of Attorney (POA) if they have given it to someone else.
• Deed of grant
  This deed can be used to create new easements, such as a private right of way, or a right to lay pipes or cables under neighboring land. For example, if a landowner needs water from a neighbor’s land, a deed of grant can be used to allow water pipes to run through the neighbor’s land. A deed of grant can also be used to record the legal owner of a grave’s burial rights.

Question 33

Talk me through your understanding of the Access to Neighbouring Land Act
1992.

Answer 33

The Access to Neighbouring Land Act 1992 enables access to adjoining or adjacent land for the purpose of carrying out ‘basic preservation works’ to one’s own property

Question 34

Talk me through your understanding of CPOs.

Answer 34

A Compulsory Purchase Order (CPO) is a legal process that allows certain organizations to acquire land or property or an interest in land and property without the owner’s consent. CPOs are used in the United Kingdom and the Republic of Ireland when there is a strong public interest case for doing so.

Question 35

Talk me through compensation principles for CPOs.

Answer 35

Talk me through compensation principles for CPOs.

It is based on the principle of equivalence. This means that you should be no worse off in financial terms after the acquisition than you were before. Likewise, you should not be any better off. Horn v Sunderland (1941)

the six rules of compensation under section 5 of the Land Compensation Act 1961 are as follows :
* Rule 1 – no allowance is to be made on account of the acquisition being compulsory
* Rule2 – open market value is the amount that a willing seller might achieve
* Rule 3 – it is necessary to ignore special suitability or adaptability for a purpose which only an acquiring authority possessing compulsory purchase powers could realise
* Rule 4 – no increase in value is to be taken into account if it is contrary to law
* Rule 5 – premises which are devoted to a purpose for which there is no general market or demand, such as churches, are compensated on the basis of equivalent reinstatement in respect of the purpose
* Rule 6 – the provisions of rule 2 shall not affect the assessment of compensation for disturbance or any other matter not directly based on the value of the land.

Question 36

How can you distinguish an easement from a licence?
An easement requires

Answer 36

How can you distinguish an easement from a licence?

For an easement:
* There must be a dominant and servient tenement;
* The easement must accommodate the dominant tenement;
* The dominant and servient owners must be different people;
* The right must be capable of forming the subject matter of a grant.
Permanent rights over land which are written in deedss

Licence does not require the above and provides a temporary right