Full Description
The second edition of this accessible book is a single up-to-date reference work which discusses a broad range of public and private law topics which directly impact on the use and development of land. In addition to new chapters on wayleaves, planning enforcement, and trees and hedgerows, this updated edition includes coverage of significant recent cases such as:
• EASEMENTS: Regency Villas Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57 (a case discussing the four essential requirements of an easement), together with some recent authorities on prescription, such as Hughes v Benefice of Frampton-on-Severn, Arlingham, Saul, Fretherne & Framilode [2021] UKUT 184 (LC).
• TOWN AND VILLAGE GREENS: TW Logistics Ltd v Essex County Council [2021] AC 1050 (the post-registration rights of a landowner and the interplay with the so-called 'Victorian Statutes') and R (Bellway Homes Ltd) v Kent County Council [2022] EWHC2593 (trigger events under s.15C of the Commons Act 2006).
• PUBLIC RIGHTS OF WAY: DPP v Ziegler [2021] UKSC 23 (the interplay between a person's right to protest and the obligation not to obstruct the highway) and R (Monckton) v Staffordshire County Council [2022] EWHC 3049 (Admin) (judicial review in the case of a modification order before it was confirmed).
• RESTRICTIVE COVENANTS: Birdlip Ltd v Hunter [2016] EWCA Civ 603 (the prerequisites for a building scheme) and Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4 (a case which involves a modern restatement of the law of private nuisance in the context of visual intrusion).
• ASSETS OF COMMUNITY VALUE: Banner Homes Ltd v St Albans District Council [2018] EWCA Civ 1187 (a case discussing the meaning of 'actual use' in section 88(2)(a) of the Localism Act 2011) and R (TV Harrison CIC) v Leeds City Council [2022] EWHC 130 (Admin) (a judgment which cites from four decisions of the FTT)).
Contents
Foreword
Preface
Table of Cases
Table of Statutes
Table of Statutory Instruments
Table of Practice Directions
Table of EC and International Material
List of Abbreviations
PART I - EASEMENTS AND PROFITS À PRENDRE
1 Easements
Introduction
Essentials of an easement
There must be a dominant and a servient tenement
Easement must accommodate the dominant land
Dominant and servient tenements must be owned and occupied by different persons
Easements must be capable of forming the subject-matter of a grant
There must be a capable grantor and a capable grantee
The right must be defined in sufficiently clear terms
The right must not be precarious
The right must not impose any positive burden on the servient owner
The easement must not exclude the servient owner from possession
2 Creation of Easements and Profits
Introduction
By statute
By express grant or reservation
Grant
Reservation
By implied grant or reservation
Easements of necessity
Easements of intended use
Easements within the rule in Wheeldon v Burrows
Law of Property Act 1925, section 62
By prescription
Prescription at common law
Prescription by lost modern grant
Prescription by statute - the Prescription Act 1832
Interruption
As of right
Use by force
Use by stealth
Permissive use
Other matters relevant to a claim based on long user
Burden of proof
Easements of light
3 Profits à Prendre
Introduction
4 Passing of Benefit and Burden of Easements and Profits à Prendre to Successors in Title
Easements
Registered land
Unregistered land
Profits à prendre
5 The Scope of Easements and Profits à Prendre
Introduction
Express grant or reservation
Implied grant/prescription by lost modern grant
6 Particular Easements and Examples of Analogous Remedies of Relevance to Development
Rights of way and excessive user
Scope of rights obtained by express grant
The rule in Harris v Flower
Scope of rights obtained by implied grant/prescription
Ancillary rights and repairs
Parking rights
Exercise of a right of way contrary to a statutory prohibition
Interference with rights of way
Rights of light
Remedies
Rights of support
Other remedies for loss of support apart from an actionable interference with an easement
Access to neighbouring land to carry out repairs
Party walls
Underground services enjoyed over third-party land
Trespass and onshore exploration
Laying pipes - miscellaneous
Rights of flow and supply of services - miscellaneous
Repairs
Excessive user by dominant owner in the case of
drainage easements
7 Extinguishment of Easements and Profits à Prendre
Introduction
By statute
By express release
By implied release
By unity of ownership and possession
8 Registration of Easements and Profits à Prendre and Determination of Disputes
Registration
Determination of disputes
PART II - WAYLEAVE AGREEMENTS
9 Wayleave Agreements
Introduction
Electricity
Internet connectivity (BT/Openreach)
Gas
Water and Sewage
PART III - TOWN AND VILLAGE GREENS
10 Town and Village Greens
Introduction
Consequences of registration
Regulatory framework under Commons Act 2006, section 15
Who is entitled to apply for registration?
Application form
Managing the application
Determining applications (non-pioneer areas)
Determining applications (pioneer areas)
Exclusion of the right to apply for registration
Commons Act 2006, section 15A - landowner statements in Form CA16
Commons Act 2006, section 15C - 'trigger' and 'terminating' events
Repeat applications (res judicata)
Qualifying criteria for registration
Qualifying criteria in outline
Qualifying criteria in detail
A significant number
Spread
The inhabitants of any locality
Of any neighbourhood within a locality
Reliance on one or more neighbourhoods straddling more than one locality
Indulged ... in lawful sports and pastimes
Right of way use - is it qualifying use?
As of right
Use by force
Use by stealth or secrecy
Permissive use
Permission implied from conduct
Use by right
Highway land - is the use of such land 'as of right'?
On the land
For a period of at least 20 years
Conflicting statutory regimes
The Newhaven, Lancashire County Council and NHS Property Services Ltd litigation
De-registration and exchange
Amending the register to cancel a registration
Challenging decisions of the registration authority
Outline
Judicial review
Commons Registration Act 1965, section 14(b)
The justice issue
PART IV - PUBLIC RIGHTS OF WAY
11 Introduction to Public Rights of Way
12 Public Rights of Way - Definitions and their Creation
What is a public right of way?
Classes of highway
13 Creation of Highways
Introduction
Common law
Express dedication and dedication generally
Implied dedication
Acceptance
Capacity
'As of right'
Statutory presumption of dedication
'A way over land'
'Other than a way of such a character that use of it by the
public could not give rise at common law to any presumption of dedication'
'Enjoyed by the public as of right'
'Without interruption'
'For a full period of 20 years'
'No intention ... to dedicate'
Statutory means by which the presumption may be negatived
Provisions under the Highways Act 1980
Section 38 - creation by agreement
Public path creation agreements
Other provisions
Section 26 - creation by order
Public path creation orders
Section 34 - creation by declaration
Section 24 - creation by construction
Reforms
14 The Highway Authority, Ownership and Maintenance
The highway authority
Ownership of the highway
Private rights over highway land
15 Maintenance and Adoption of Highways
Introduction
Who is responsible to repair?
The adoption of roads
Highways Act 1980, section 37
Highways Act 1980, section 38
Private streets
What is a 'private street'?
Private street works code
Street works
Procedure
Objections
Expenses
Liability and recovery of expenses
Exemptions
Advance payments code
Procedure
16 Interferences with Public Highways
Introduction
General provisions under the Highways Act 1980
Specific provisions under the Highways Act 1980
Damage to the highway
Obstruction of highways
Section 137 - wilful obstruction
Section 138 - the erection of buildings
Section 139 - control of builders' skips
Causing danger to highway users
Public nuisance
Criminal law
17 Stopping Up and Diversion Orders
Introduction
The effect of stopping up and diversion
Stopping up and diversions - development provisions under the Town and Country Planning Act 1990
Section 247
Guidance - timing the application
Guidance - will the application be successful?
Cost and contributions to compensation
Procedure
Section 257
Guidance
Procedure
Section 248
Sections 251 and 258
Other development provisions
Provisions under the Highways Act 1980
Section 116 - judicial orders
Stopping up in cases where the highway is 'unnecessary'
Diversions under section 116
Procedure
When to use this section - tactics?
Section 118 - public path extinguishment orders
The initial stage
Confirmation of the order
Procedure
Section 119 - public path diversion orders
Conditions for making the order
Conditions for confirmation
What the order may contain
Procedure
Other provisions under the Highways Act 1980
Sections 118A and 119A - stopping up and diversion of rights of ways crossing railways
Section 119D - diversion of highways for the protection of sites of special scientific interest
Further provisions
Temporary diversions
Alternative ways by which highways might be extinguished
Physical destruction
Adverse Possession
18 Ascertaining and Recording Rights of Way
Introduction
What is the definitive map and statement?
Inclusion of rights on the definitive map and statement
Roads used as public paths
Effect of the Natural Environment and Rural Communities Act 2006
Conflicts between the map and statement
Modifications to the definitive map
The coming into operation of any enactment or instrument giving rise to the events set out in section 53(3)(a)(i)-(iii)
The expiration of a period giving rise to a presumption that a way has been dedicated as a public footpath or restricted byway
Discovery by the authority of evidence
Definitive map modification orders
Procedure
The application
Orders modifying the definitive map and statement
Judicial review before confirmation of the order?
Further challenge after confirmation?
19 Financial Provisions
Agreements under Highways Act 1980, section 278
Relationship between section 278 agreements and planning permission
PART V - RESTRICTIVE COVENANTS (FREEHOLD LAND)
20 Introduction to Restrictive Covenants (Freehold Land)
21 Positive and Negative Covenants and the Transmission of Benefit and Burden to Successors in Title of the Original Contracting Parties
The distinction between positive and negative covenants
22 Enforceability of the Benefit of a Covenant
As between the contracting parties
Passing of the benefit of a positive or restrictive covenant
Burden of positive covenants
23 Enforceability of the Burden of a Freehold Covenant
Introduction
Development of the law of restrictive covenants
Covenant must be negative in nature or restrictive of the use of the burdened land
Covenant must be made for the benefit and protection of land held by the covenantee
Exceptions to the rule that the covenant must confer a benefit on the land of the covenantee
Leases and mortgages
Under a scheme of development
Statutory exemptions from the requirement of land capable of benefiting from the restrictive covenant
Special equitable rules apply in relation to the enforceability of a restrictive covenant where the original covenantee has parted with the benefited land
Statutory annexation
Summary on assignment and annexation
Schemes of development (or building scheme covenants)
Letting schemes
Covenant must have been intended to run with the covenantor's land
Passing of the burden (notice and registration)
Registration in the case of building schemes
24 Restrictive Covenants and Other Restrictions on the Use of Freehold Land in Public Ownership
Introduction
Power of public bodies to impose restrictive covenants
Town and Country Planning Act 1990, section 106 (substituted by Planning and Compensation Act 1991, section 12)
Highways Act 1980, section 35
Housing Act 1985, section 609
Wildlife and Countryside Act 1981, section 39
Local Government (Miscellaneous Provisions) Act 1982, section 33
National Trust Act 1937, section 8
Power of local authorities to extinguish or override restrictive covenants
Consequences of compulsory purchase
Land held by local authorities which is subject to rights of public recreation (land either acquired or appropriated onto such purposes or held for charitable purposes)
25 Meaning and Construction of Certain Restrictive Covenants which Impact on the Development and Commercial Use of Land
Overview in relation to contractual interpretation
Implying terms
Specific covenants
Covenants involving the submission of plans and not building without consent
Inference that consent to development should not be unreasonably withheld
Relevant factors in determining reasonableness
Meaning of certain terms in restrictive covenants which impact on residential development
Covenants associated with the use of a building or plot as a private dwelling-house
Case law examples of the terms, 'erection', 'structure' or 'building' in a restrictive covenant
Covenants which impact on the use of premises for trade or business purposes
User covenants which prohibit use for any trade or business
User covenants which prohibit use for a specified trade or business
Covenants which prohibit the carrying on of offensive or noisy trades or otherwise directed against annoyance or nuisance
Competition Act 1998 - land agreements
Restrictive covenants which preclude the acquisition of rights of light or other easements
26 Litigation - Remedies and Practice
Introduction
Damages or injunction - development of the modern law
Damages in addition to a permanent injunction
Remedies for breach of covenant - summary
Claims - practice
Stays and limitation
27 Release, Discharge or Modification of Restrictive Covenants
Introduction
Release by express agreement
Change of character of neighbourhood
Acquiescence
Unity of seisin
Discharge or modification of restrictive covenants under Law of Property Act 1925, section 84(1) (as amended by Law of Property Act 1969, section 28)
Procedure
Introduction to Law of Property Act 1925, section 84(1)
Jurisdiction of the Upper Tribunal (Lands Chamber)
Section 84 grounds for discharge or modification
First condition - obsolete covenants (section 84(1)(a))
Second condition - where the restriction would, unless discharged or modified, impede some reasonable user of the land for public or private purposes (section 84(1)(aa) and (1A))
Third condition - consent to discharge (section 84(1)(b))
Fourth condition - where the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction (section 84(1)(c))
Compensation under section 84(1)
Implementation (registration) of orders made under section 84
Costs in proceedings before the Upper Tribunal (Lands Chamber)
28 Restrictive Covenants - Planning and Compulsory Purchase
Planning
Compulsory purchase
PART VI - ASSETS OF COMMUNITY VALUE
Introduction
What land assets are affected?
Land which is not of community value and which cannot be listed
Residential property
Land licensed for use as a residential caravan site
Operational land of statutory undertakers
Who may nominate an asset for inclusion in the list of assets of community value?
Contents of community nominations
Procedure after a nomination has been made
Right to a review
Procedure for reviews
Appeals against listing review decisions
List of land nominated but unlisted
Publication and inspection of lists
Moratorium requirements on disposals of listed land
Moratorium summary
Exemptions to the moratorium provisions
Compensation and enforcement
Internal review of compensation decisions
Enforcement
PART VII - ENFORCEMENT OF PLANNING CONTROL
30 Enforcement of Planning Control
Introduction to planning control
The purpose of planning control
Key decision takers
The Planning Inspectorate
National planning policy
Nationally Significant Infrastructure Projects
Local development plans
Neighbourhood planning
The contribution made by development to infrastructure
Permitted development rights
Obtaining planning permission
Planning appeals
Recovered appeals
Call-in
Enforcement of planning control
Introduction
When might formal enforcement action not be appropriate?
Time limits for enforcement action
Time limits in cases of concealment - planning enforcement orders
Powers (other than an enforcement notice or a stop notice) available to a local planning authority to deal with enforcement
Planning contravention notice
Power of entry
Stop notices and temporary stop notices
Breach of condition notice (enforcement of conditions)
Injunctions restraining breaches of planning control
Enforcement notice
Enforcement by the Secretary of State
Appeal against enforcement notice
Secretary of State's powers in the case of enforcement
notice appeals
Grant or modification of planning permission on appeals against enforcement notices
Variation and withdrawal of enforcement notices and effect of planning permission on enforcement
Non-compliance with an enforcement notice
Enduring effect of an enforcement notice
Issue estoppel
PART VIII -TREE PRESERVATION ORDERS, TREES IN CONSERVATION AREAS AND HEDGEROWS
31 Tree Preservation Orders, Trees in Conservation Areas and Hedgerows
Tree preservation orders
Regulatory framework
Local planning authority's duty
What is a tree preservation order?
What are the tree owner's responsibilities?
Challenging a tree preservation order
Compensation for refusal of consent to fell
Duty to replant
Enforcement
Trees in conservation areas
Hedgerows
Where removal may be permissible without consent
Enforcement
Public records
Index
