Restrictions on the Use of Land: A Practitioner's Handbook

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 A 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 a Prendre


Introduction







4 Passing of Benefit and Burden of Easements and Profits a Prendre to Successors in Title


Easements


Registered land


Unregistered land


Profits a prendre







5 The Scope of Easements and Profits a 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 a Prendre


Introduction


By statute


By express release


By implied release


By unity of ownership and possession







8 Registration of Easements and Profits a 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