Access & rights over land Flashcards
Telecoms legislation
- 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
What alteration and alienation rights do telecoms operators have under Code agreements?
- 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
How do you terminate a code agreement?
- 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
What is an easement?
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
What are the tests in the case “Re: Ellenborough Park (1856)”?
- 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
What is a dominant and a servient tenement?
The dominant land is the land owned by the owner of the right;
the servient land beard the burden of the easement.
How is an easement created?
- 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
When do easements continue to run until?
- 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
What are positive easements?
where there is a right in favour of the dominant landowner to “do” something on the servient land i.e. right to run services
What is a negative easement?
prevent a servient landowner from doing something on their own land e.g. right of support
What are the remedies which a dominant landowner may have for interference?
- injunctions
- declarations (court clarifies extent)
- damages
What is a wayleave?
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
When is a wayleave used?
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
What is the difference between a wayleave and an easement?
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.
What is a wayleave payment?
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.
When are easements used, as opposed to wayleaves?
Easements usually relate to more permanent statutory access agreements for larger infrastructure projects such as the installation of new water, gas or sewage pipes.
When is a customer service contract used rather than a wayleave?
If it is a landowner that requires the service that is being installed.
What components are normally included in a wayleave?
- 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
What is the right to roam and how does it come about?
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.
How are rights of way created?
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.
How can Rights of Way be closed?
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.
How are disputes over Rights of Way resolved?
negotiations with neighbours can be the best way;
for public RoW, these can be discussed with the local highway authority
What are “licence holders” under the Electricity Act 1989?
National Grid and electricity distribution companies who own and operate the electricity networks that feed electricity to households
Can an ICP install equipment without an agreement in a public highway?
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.
