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

William Webster was called to the Bar in 1975. He is a member of 3 Paper Buildings, practising in the areas of land and planning. Robert Weatherley is a barrister specialising in property work at 3 Paper Buildings. His practice encompasses traditional land.

• Foreword PrefaceTable of CasesTable of StatutesTable of Statutory InstrumentsTable of Practice DirectionsTable of EC and International MaterialList of AbbreviationsPART I - EASEMENTS AND PROFITS À PRENDRE1         EasementsIntroductionEssentials of an easementThere must be a dominant and a servient tenementEasement must accommodate the dominant landDominant and servient tenements must be owned and occupied by different personsEasements must be capable of forming the subject-matter of a grantThere must be a capable grantor and a capable granteeThe right must be defined in sufficiently clear termsThe right must not be precariousThe right must not impose any positive burden on the servient ownerThe easement must not exclude the servient owner from possession2         Creation of Easements and ProfitsIntroductionBy statuteBy express grant or reservationGrantReservationBy implied grant or reservationEasements of necessityEasements of intended useEasements within the rule in Wheeldon v BurrowsLaw of Property Act 1925, section 62By prescriptionPrescription at common lawPrescription by lost modern grantPrescription by statute – the Prescription Act 1832InterruptionAs of rightUse by forceUse by stealthPermissive useOther matters relevant to a claim based on long userBurden of proofEasements of light3         Profits à PrendreIntroduction4         Passing of Benefit and Burden of Easements and Profits à Prendre to Successors in TitleEasementsRegistered landUnregistered landProfits à prendre5         The Scope of Easements and Profits à PrendreIntroductionExpress grant or reservationImplied grant/prescription by lost modern grant6         Particular Easements and Examples of Analogous Remedies of Relevance to DevelopmentRights of way and excessive userScope of rights obtained by express grantThe rule in Harris v FlowerScope of rights obtained by implied grant/prescriptionAncillary rights and repairsParking rightsExercise of a right of way contrary to a statutory prohibitionInterference with rights of wayRights of lightRemediesRights of supportOther remedies for loss of support apart from an actionable interference with an easementAccess to neighbouring land to carry out repairsParty wallsUnderground services enjoyed over third-party landTrespass and onshore explorationLaying pipes – miscellaneousRights of flow and supply of services – miscellaneousRepairsExcessive user by dominant owner in the case of drainage easements7         Extinguishment of Easements and Profits à PrendreIntroductionBy statuteBy express releaseBy implied releaseBy unity of ownership and possession8         Registration of Easements and Profits à Prendre and Determination of DisputesRegistrationDetermination of disputesPART II - WAYLEAVE AGREEMENTS9         Wayleave AgreementsIntroductionElectricityInternet connectivity (BT/Openreach)GasWater and SewagePART III - TOWN AND VILLAGE GREENS10       Town and Village GreensIntroductionConsequences of registrationRegulatory framework under Commons Act 2006, section 15Who is entitled to apply for registration?Application formManaging the applicationDetermining applications (non-pioneer areas)Determining applications (pioneer areas)Exclusion of the right to apply for registrationCommons Act 2006, section 15A – landowner statements in Form CA16Commons Act 2006, section 15C – ‘trigger’ and ‘terminating’ eventsRepeat applications (res judicata)Qualifying criteria for registrationQualifying criteria in outlineQualifying criteria in detailA significant numberSpreadThe inhabitants of any localityOf any neighbourhood within a localityReliance on one or more neighbourhoods straddling more than one localityIndulged … in lawful sports and pastimesRight of way use – is it qualifying use?As of rightUse by forceUse by stealth or secrecyPermissive usePermission implied from conductUse by rightHighway land – is the use of such land ‘as of right’?On the landFor a period of at least 20 yearsConflicting statutory regimesThe Newhaven, Lancashire County Council and NHS Property Services Ltd litigationDe-registration and exchangeAmending the register to cancel a registrationChallenging decisions of the registration authorityOutlineJudicial reviewCommons Registration Act 1965, section 14(b)The justice issuePART IV - PUBLIC RIGHTS OF WAY11       Introduction to Public Rights of Way12       Public Rights of Way – Definitions and their CreationWhat is a public right of way?Classes of highway13       Creation of HighwaysIntroductionCommon lawExpress dedication and dedication generallyImplied dedicationAcceptanceCapacity‘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 negativedProvisions under the Highways Act 1980Section 38 – creation by agreementPublic path creation agreementsOther provisionsSection 26 – creation by orderPublic path creation ordersSection 34 – creation by declarationSection 24 – creation by constructionReforms14       The Highway Authority, Ownership and MaintenanceThe highway authorityOwnership of the highwayPrivate rights over highway land15       Maintenance and Adoption of HighwaysIntroductionWho is responsible to repair?The adoption of roadsHighways Act 1980, section 37Highways Act 1980, section 38Private streetsWhat is a ‘private street’?Private street works codeStreet worksProcedureObjectionsExpensesLiability and recovery of expensesExemptionsAdvance payments codeProcedure16       Interferences with Public HighwaysIntroductionGeneral provisions under the Highways Act 1980Specific provisions under the Highways Act 1980Damage to the highwayObstruction of highwaysSection 137 – wilful obstructionSection 138 – the erection of buildingsSection 139 – control of builders’ skipsCausing danger to highway usersPublic nuisanceCriminal law17       Stopping Up and Diversion OrdersIntroductionThe effect of stopping up and diversionStopping up and diversions – development provisions under the Town and Country Planning Act 1990Section 247Guidance – timing the applicationGuidance – will the application be successful?Cost and contributions to compensationProcedureSection 257GuidanceProcedureSection 248Sections 251 and 258Other development provisionsProvisions under the Highways Act 1980Section 116 – judicial ordersStopping up in cases where the highway is ‘unnecessary’Diversions under section 116ProcedureWhen to use this section – tactics?Section 118 – public path extinguishment ordersThe initial stageConfirmation of the orderProcedureSection 119 – public path diversion ordersConditions for making the orderConditions for confirmationWhat the order may containProcedureOther provisions under the Highways Act 1980Sections 118A and 119A – stopping up and diversion of rights of ways crossing railwaysSection 119D – diversion of highways for the protection of sites of special scientific interestFurther provisionsTemporary diversionsAlternative ways by which highways might be extinguishedPhysical destructionAdverse Possession18       Ascertaining and Recording Rights of WayIntroductionWhat is the definitive map and statement?Inclusion of rights on the definitive map and statementRoads used as public pathsEffect of the Natural Environment and Rural Communities Act 2006Conflicts between the map and statementModifications to the definitive mapThe 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 bywayDiscovery by the authority of evidenceDefinitive map modification ordersProcedureThe applicationOrders modifying the definitive map and statementJudicial review before confirmation of the order?Further challenge after confirmation?19       Financial ProvisionsAgreements under Highways Act 1980, section 278Relationship between section 278 agreements and planning permissionPART 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 PartiesThe distinction between positive and negative covenants22       Enforceability of the Benefit of a CovenantAs between the contracting partiesPassing of the benefit of a positive or restrictive covenantBurden of positive covenants23       Enforceability of the Burden of a Freehold CovenantIntroductionDevelopment of the law of restrictive covenantsCovenant must be negative in nature or restrictive of the use of the burdened landCovenant must be made for the benefit and protection of land held by the covenanteeExceptions to the rule that the covenant must confer a benefit on the land of the covenanteeLeases and mortgagesUnder a scheme of developmentStatutory exemptions from the requirement of land capable of benefiting from the restrictive covenantSpecial equitable rules apply in relation to the enforceability of a restrictive covenant where the original covenantee has parted with the benefited landStatutory annexationSummary on assignment and annexationSchemes of development (or building scheme covenants)Letting schemesCovenant must have been intended to run with the covenantor’s landPassing of the burden (notice and registration)Registration in the case of building schemes24       Restrictive Covenants and Other Restrictions on the Use of Freehold Land in Public OwnershipIntroductionPower of public bodies to impose restrictive covenantsTown and Country Planning Act 1990, section 106 (substituted by Planning and Compensation Act 1991, section 12)Highways Act 1980, section 35Housing Act 1985, section 609Wildlife and Countryside Act 1981, section 39Local Government (Miscellaneous Provisions) Act 1982, section 33National Trust Act 1937, section 8Power of local authorities to extinguish or override restrictive covenantsConsequences of compulsory purchaseLand 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 LandOverview in relation to contractual interpretationImplying termsSpecific covenantsCovenants involving the submission of plans and not building without consentInference that consent to development should not be unreasonably withheldRelevant factors in determining reasonablenessMeaning of certain terms in restrictive covenants which impact on residential developmentCovenants associated with the use of a building or plot as a private dwelling-houseCase law examples of the terms, ‘erection’, ‘structure’ or ‘building’ in a restrictive covenantCovenants which impact on the use of premises for trade or business purposesUser covenants which prohibit use for any trade or businessUser covenants which prohibit use for a specified trade or businessCovenants which prohibit the carrying on of offensive or noisy trades or otherwise directed against annoyance or nuisanceCompetition Act 1998 – land agreementsRestrictive covenants which preclude the acquisition of rights of light or other easements26       Litigation – Remedies and PracticeIntroductionDamages or injunction – development of the modern lawDamages in addition to a permanent injunctionRemedies for breach of covenant – summaryClaims – practiceStays and limitation27       Release, Discharge or Modification of Restrictive CovenantsIntroductionRelease by express agreementChange of character of neighbourhoodAcquiescenceUnity of seisinDischarge or modification of restrictive covenants under Law of Property Act 1925, section 84(1) (as amended by Law of Property Act 1969, section 28)ProcedureIntroduction to Law of Property Act 1925, section 84(1)Jurisdiction of the Upper Tribunal (Lands Chamber)Section 84 grounds for discharge or modificationFirst 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 84Costs in proceedings before the Upper Tribunal (Lands Chamber)28       Restrictive Covenants – Planning and Compulsory PurchasePlanningCompulsory purchasePART VI - ASSETS OF COMMUNITY VALUE IntroductionWhat land assets are affected?Land which is not of community value and which cannot be listedResidential propertyLand licensed for use as a residential caravan siteOperational land of statutory undertakersWho may nominate an asset for inclusion in the list of assets of community value?Contents of community nominationsProcedure after a nomination has been madeRight to a reviewProcedure for reviewsAppeals against listing review decisionsList of land nominated but unlistedPublication and inspection of listsMoratorium requirements on disposals of listed landMoratorium summaryExemptions to the moratorium provisionsCompensation and enforcementInternal review of compensation decisionsEnforcementPART VII - ENFORCEMENT OF PLANNING CONTROL30       Enforcement of Planning ControlIntroduction to planning controlThe purpose of planning controlKey decision takersThe Planning InspectorateNational planning policyNationally Significant Infrastructure ProjectsLocal development plansNeighbourhood planningThe contribution made by development to infrastructurePermitted development rightsObtaining planning permissionPlanning appealsRecovered appealsCall-inEnforcement of planning controlIntroductionWhen might formal enforcement action not be appropriate?Time limits for enforcement actionTime limits in cases of concealment – planning enforcement ordersPowers (other than an enforcement notice or a stop notice) available to a local planning authority to deal with enforcementPlanning contravention noticePower of entryStop notices and temporary stop noticesBreach of condition notice (enforcement of conditions)Injunctions restraining breaches of planning controlEnforcement noticeEnforcement by the Secretary of StateAppeal against enforcement noticeSecretary of State’s powers in the case of enforcement notice appealsGrant or modification of planning permission on appeals against enforcement noticesVariation and withdrawal of enforcement notices and effect of planning permission on enforcementNon-compliance with an enforcement noticeEnduring effect of an enforcement noticeIssue estoppelPART VIII -TREE PRESERVATION ORDERS, TREES IN CONSERVATION AREAS AND HEDGEROWS31       Tree Preservation Orders, Trees in Conservation Areas and HedgerowsTree preservation ordersRegulatory frameworkLocal planning authority’s dutyWhat is a tree preservation order?What are the tree owner’s responsibilities?Challenging a tree preservation orderCompensation for refusal of consent to fellDuty to replantEnforcementTrees in conservation areasHedgerowsWhere removal may be permissible without consentEnforcementPublic recordsIndex