Access & Rights Flashcards
What is a wayleave?
A contractual right allowing a third party (e.g., utility company) to install and maintain infrastructure (e.g., power lines, water pipes) over private land.
What is a servitude?
A legal right allowing one landowner to use another’s land for a specific purpose (e.g., access).
Main differences between Servitudes and Wayleaves?
Wayleaves are contractual and can be revoked, whereas servitudes are property rights and usually permanent.
Wayleaves are common for utilities, while servitudes are typically for land access, drainage, or pipelines.
Wayleaves require consent from the landowner, but servitudes can arise by prescription (20 years of use in Scotland).
What is a necessary wayleave?
A Necessary Wayleave is a statutory right that allows utility companies (such as electricity and telecommunications providers) to install and maintain infrastructure (e.g., power lines, cables, or pipelines) on private land without the landowner’s consent. This is usually granted when negotiations between the landowner and utility provider fail, but the infrastructure is deemed essential for public benefit.
Under what legislation can necessary wayleaves be put in place?
In Scotland, the Scottish Ministers have the power to grant a necessary wayleave under the Electricity Act 1989 if the landowner refuses consent.
The landowner can appeal against the decision, but this is often difficult to overturn if the wayleave is deemed essential.
You gave advice on purchasing the land. Did Network Rail need to purchase the land or was there an alternative?
They needed to purchase the land.
Under what rights could Network Rail obtain land from your client?
CPO- Check??!!
What would they need to demonstrate in order to achieve this
H&S issue resolving, public need.
How did you advise your client on the value of the strip?
Comparable evidence
How did you agree on access to the site for the area that was sold?
There was only one access route which didn’t affect my client.
Did you require any other professional help during the negotiations?
Solicitor checking the title plan/ checking that there are no pipes/utilities for the access, draw up the missives for the sale, access agreement.
How was your client impacted by a pipeline crossing their land?
Not impacted yet but would be hassle as over an arable field.
Was the pipeline being put in recently or was it an existing pipeline that required work?
Being put in.
How did you go about taking a record of condition?
Images then inputed to our ROC software - Georeferenced.
How did you present the information for ROC?
Georeferenced therefore each image matched with a corresponding mapping coordinate.
Are the works completed and if there was any damage how have you negotiated any damage caused?
Not completed - would put in a compensation claim.
Did you include any reservations in your claim for damages?
Drainage / Future Losses
How did you negotiate your time being covered by the utility company?
XXX
On what basis was your fee paid?
Time basis.
How would you advise a client on the implications of granting a servitude right of access?
A servitude is a legal right allowing one party (the benefited property) to use another party’s land (the burdened property) for a specific purpose, such as access for vehicles or pedestrians.
Permanent Burden on the Land - Once a servitude is granted, it runs with the land—meaning it remains in place even if the burdened property is sold.
E.G. Gas pipe across a field that could be developed.
What factors do you consider when advising on private road maintenance responsibilities?
Ownership & Responsibility
Examine title deeds, servitudes (Scotland), or servitude agreements to determine who has the legal duty to maintain the road.
If a dispute arose regarding access rights, how would you go about resolving it?
Review Legal Documentation/Conduct a Site Inspection & Mapping Analysis/Consult Relevant Stakeholders
If necessary, propose an access agreement between the parties to clarify rights and responsibilities.
Negotiation and other ADR mechanisms.
How do you ensure that a property sale does not infringe upon existing access rights?
Examine title deeds and land register
Identify easements, servitudes, wayleaves, or rights of way affecting the property.
Confirm whether any third parties (neighbors, businesses, or the public) have legal access.
Ensure any private access agreements (e.g., shared driveways) are recorded correctly.
What are the key legal rights affecting access to farmland?
Public Rights of Access (Scotland) - Land Reform (Scotland) Act 2003, the public has a statutory “right to roam” for recreational, educational, and passage purposes.
Private Rights of Way
Servitude Rights of Access
Wayleaves
How do public rights of way impact land value?
Negatively - Reduced Privacy and Security / Restrictions on Land Use and Development/ Maintenance Responsibilities/ Risk of Nuisance and Liability
Positively - Increased Amenity Value for Rural Properties/ Potential for Diversification
What steps should be taken to verify private access rights before a sale?
Check stipulations with what is stated on title with solicitor.
What challenges arise when a farm sale involves shared access routes?
Clarity of Ownership and Rights
Access Rights for Different Parties
Potential for Disputes
How would you advise a buyer who wishes to alter an existing right of way?
Check the Legal Documentation
Determine Who Benefits from the Right
Altering a right of way requires careful legal review, stakeholder negotiation, and practical planning. The key is ensuring all affected parties agree and benefit from the change to avoid legal disputes or claims.
You provided a client with advice on negotiations with Network Rail. What was the circumstance of Network Rails involvement?
Required access to do safety works on the railway.
You gave advice on purchasing the land. Did Network Rail need to purchase the land or was there an alternative?
They wanted to purchase the strips which was agreeable to my client however a servitude could have been agreed.
Did you require any other professional help during the negotiations?
Check the title plan, check that there are no pipes/utilities for the access, draw up the missives for the sale, access agreement.
For your pipeline claim, if it came to light damage was inflicted what would heads of claim be?
Did you consider a servitude agreement when negotiating the wayleave?
In relation to the battery storage how did you arrive at your annualised payment?
Define a non-invasive survey?
