Access & rights over land

Question 1

Telecoms legislation

Answer 1

• Digital Economy Act 2017
  (replaced the Code introduced by the Telecoms Act 1984)
• “no-scheme world”
• can install apparatus:
  with written consent of landowner;
  by a Court order (if agreement not completed within 28 days)
• operators listed on OFCOM register can have Code rights
• under old code, where agreement contracted out part 5 & 6 of new Code apply
• for agreements within LTA54, can only be terminated by s25 or s26
• new lease will be a Code agreement
• rent will be OMR, no assumption of no-scheme world

Question 2

What alteration and alienation rights do telecoms operators have under Code agreements?

Answer 2

• site provider can require alterations if necessary to carry out “improvement”
• compensation payable under para. 20
• automatic assignment rights
• can still require outgoing operator to provide an AGA
• right to upgrade and share subject to:
  no additional burden on landowner;
  no more than a minimum adverse impact on appearance of apparatus
• sharing will not create Code rights for the sharer

Question 3

How do you terminate a code agreement?

Answer 3

• on expiry of a Code agreement, continues until determined
• termination by landowner
  not less than 18 months’ notice
  specifying: substantial breach
  persistent delay in payment
  proposals to redevelop
  operator does not meet para 21 test
  (cannot be compensated in money and public benefit
  outweighs prejudice caused)
• will end on expiry of landowners’ notice unless:
  within 3 months operatory serves counter-notice;
  within 3 months of counter-notice, operator applies for court order under para. 34
• if Court decides must end and operator does not remove apparatus, must apply to Court to enforce removal
• if landowner unsuccessful, Court to order:
  existing agreement continues;
  agreement continues with modifications;
  parties enter into a new agreement

Question 4

What is an easement?

Answer 4

the right of one landowner to make use of another nearby piece of land for the benefit of his own land

most common: a right of way / a right of light / a right of support

Question 5

What are the tests in the case “Re: Ellenborough Park (1856)”?

Answer 5

• there must be a dominant and a 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 6

What is a dominant and a servient tenement?

Answer 6

The dominant land is the land owned by the owner of the right;
the servient land beard the burden of the easement.

Question 7

How is an easement created?

Answer 7

• by an express grant by the servient owner to the dominant owner
• by the express reservation of the right when the dominant owner sells part of his land to the servient owner
• by implication
• by prescription

Question 8

When do easements continue to run until?

Answer 8

• the piece of land and the adjoining land come under the same ownership
• a certain expressly agreed expiration date for the easement has been reached or a new deed revokes the easement
• an easement has not been used for at least 20 years

Question 9

What are positive easements?

Answer 9

where there is a right in favour of the dominant landowner to “do” something on the servient land i.e. right to run services

Question 10

What is a negative easement?

Answer 10

prevent a servient landowner from doing something on their own land e.g. right of support

Question 11

What are the remedies which a dominant landowner may have for interference?

Answer 11

• injunctions
• declarations (court clarifies extent)
• damages

Question 12

What is a wayleave?

Answer 12

A contract between the owner or occupier of land (the grantor) and a third party (the grantee) permitting the grantee to access privately-owned land to carry out works in return for some form of compensation;
it is a licence;
it does not automatically transfer to a new landowner if the property is sold

Question 13

When is a wayleave used?

Answer 13

typically they are used to allow utility companies to install cables, pipes or pylons or other equipment or apparatus on privately-owned land and giving them access to the site at reasonable times to be able to carry out inspections, alterations, renewal, removal, maintenance and repairs

Question 14

What is the difference between a wayleave and an easement?

Answer 14

Easements are executed as deeds, are registered with the Land Reg and are permanently attached to the land in return for a one-off payment.
This gives better security to the grantee who may be prepared to pay more for an easement than a wayleave, but an easement may impact on the long-term value of the land if the landowner chooses to sell or lease the land.

Question 15

What is a wayleave payment?

Answer 15

Payments are generally annual, but can be made as a single lump-sum payment.

A wayleave payment may consist of 2 parts: the owner’s payment and the occupier’s payment.

The grantee should commit to minimising any damage to the property and to make good or pay compensation where there is damage.

Question 16

When are easements used, as opposed to wayleaves?

Answer 16

Easements usually relate to more permanent statutory access agreements for larger infrastructure projects such as the installation of new water, gas or sewage pipes.

Question 17

When is a customer service contract used rather than a wayleave?

Answer 17

If it is a landowner that requires the service that is being installed.

Question 18

What components are normally included in a wayleave?

Answer 18

• the obligations of each party
• what happens if the service media needs to be relocated
• how the wayleave agreement can be brought to an end
• an indemnity given by the service provider to the landowner
• how disputes will be remedied

Question 19

What is the right to roam and how does it come about?

Answer 19

A right of way can be afforded to the general public if:
- the land is designated as “open access”, such as mountains, moors, heaths and downs
- the landowner has given permission for access (“permissive access”)
- there is a local tradition of access

Public RoW exist across many types of privately-owned land in the form of footpaths, bridleways and byways; landowners must ensure they do not obstruct or interfere with these public rights of way.

Question 20

How are rights of way created?

Answer 20

RoW are created in the same way as easements; in terms of permissive access, the landowner can either reach a formal agreement with the local council or may decide to publicise its availability in a less formal manner e.g. by displaying signs.
Public RoW are often historic but sometimes created in a similar way to prescriptive easements.

Question 21

How can Rights of Way be closed?

Answer 21

RoW on private land can be closed in the same way as easements can be extinguished;
in the case of public rights of way, the local highway authority may be able to close or divert a route.

Question 22

How are disputes over Rights of Way resolved?

Answer 22

negotiations with neighbours can be the best way;
for public RoW, these can be discussed with the local highway authority

Question 23

What are “licence holders” under the Electricity Act 1989?

Answer 23

National Grid and electricity distribution companies who own and operate the electricity networks that feed electricity to households

Question 24

Can an ICP install equipment without an agreement in a public highway?

Answer 24

Yes, an Independent Connection Provider doesn’t need land rights when installing equipment in a public highway or in land laid out to form part of a public highway.

Question 25

What can “licence holders” do if an agreement cannot be reached through negotiation under the Electricity Act 1989?

Answer 25

The licence holders may promote a CPO under Schedule 3 or apply for a “necessary” wayleave under Schedule 4 paras 6 and 8
(21 days notice then apply to SoS)

Question 26

Can a licence holder fell trees or shrubs in close proximity to an electric line/plant?

Answer 26

Yes, under para 9 Schedule 4 of the Electricity Act 1989
(21 days notice then refer to SoS)

Question 27

How can a wayleave agreement be terminated under the Electricity Act 1989?

Answer 27

When a wayleave has expired, the landowner may, either within 3 months before the wayleave expires or any time after, serve a Notice to Remove the electric line;
also applies where no form of agreement in place or where change of ownership or occupancy of land;
where a wayleave in place, must serve a Notice to Terminate in accordance with the notice period and then a Notice to Remove
(under para 8 Schedule 4)

Question 28

What is compensation for a CPO based on?

Answer 28

The principle of equivalence:
should be no worse off in financial terms or better off than before acquisition;
the effects of the CPO on the value of a property are ignored when assessing compensation , so necessary to value the land on the basis of its OMV without any increase or decrease attributable to the scheme of development which underlies the CPO

Question 29

When does Cadent require an easement?

Answer 29

• all mains in private land
• all services operating at pressures greater than 75mbar (Low Pressure) in private land
• all services greater than or equal to 63mm diameter crossing third party land
• all services greater than 50m in length in private land
• mains and/or services to be installed within private roads/streets not dedicated to public use that supply a property that is not abutting the street
• for all other services crossing third party land, Cadent will require a Consent to Lay form from the landowner

Question 30

Can Cadent place pipes within streets?

Answer 30

Yes, streets are defined within the Gas Act 1986 and New Roads and Street Works Act 1991.

As a gas transporter, Cadent has statutory rights to lay assets within the public highway.

Question 31

What are the considerations before routing a pipe?

Answer 31

• the directness of possible routes
• the cost (both of laying and of maintaining the pipe) and the amount of any compensation may have to pay
• the disruptive effect of the works (to traffic, businesses, individuals)
• engineering considerations
• desirability of achieving gravity flow
• the avoidance of sites of environmental importance

Question 32

How many days notice do United Utilities give for entry for survey?

Answer 32

unless an emergency or agreed a shorter period, 7 days

Question 33

What Notices must be United Utilities give to carry out works within land?

Answer 33

usually combine Notice of Entry with Notice to Carry Out Works with a plan

Question 34

When might United Utilities request an easement?

Answer 34

For new water mains greater than 150mm in diameter;
for smaller water mains and for sewers usually rely upon statutory powers

Question 35

How much notice to United Utilities give if works involve laying a new pipe?

Answer 35

at least 3 months notice or, if in response to requisition, 21 days;
always try to contact before issuing notice

Question 36

How much notice do United Utilities give for alterations/routine maintenance?

Answer 36

for alterations, unless emergency give at least 42 days;
for routine maintenance/inspection etc., unless emergency 7 days

Question 37

What if landowner doesn’t permit access to land in accordance with a notice from United Utilities?

Answer 37

can apply to a Magistrate for a warrant

Question 38

What compensation can be claimed from United Utilities?

Answer 38

if cause permanent loss of value in land, or any temporary losses or disturbances, plus agents fees on Ryder’s scale