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

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