Restrictions on the Use of Land: A Practitioner's Handbook 2nd Edition

Conveyancing / Tenancy / Land › Planning Law

Restrictions on the Use of Land: A Practitioner's Handbook 2nd Edition

Edited by William Webster · Robert Weatherley
Wildy, Simmonds and Hill Publishing June 2024

Specifications

ISBN-13
9780854903030
Publisher
Wildy, Simmonds and Hill Publishing
Publication
June 2024
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Details

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, 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 (which discusses the 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 pre-requisites 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 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).

Table of Contents

Foreword to the First Edition
Foreword to the Second Edition
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

2.
Creation of Easements and Profits
Introduction
By statute
By express grant or reservation
By implied grant or reservation
By prescription
Interruption
As of right
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
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

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
Repeat applications (res judicata)
Qualifying criteria for registration
Conflicting statutory regimes
De-registration and exchange
Amending the register to cancel a registration
Challenging decisions of the registration authority

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
‘As of right’
Statutory presumption of dedication
Provisions under the Highways Act 1980
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
Private streets
Private street works code
Advance payments code

16.
Interferences with Public Highways
Introduction
General provisions under the Highways Act 1980
Specific provisions under the Highways Act 1980
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
Other development provisions
Provisions under the Highways Act 1980
Other provisions under the Highways Act 1980
Further provisions
Temporary diversions
Alternative ways by which highways might be extinguished
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

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
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)
Covenant must have been intended to run with the covenantor’s land
Passing of the burden (notice and registration)

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
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 which impact on the use of premises for trade or business purposes
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)
Introduction to Law of Property Act 1925, section 84(1)
Jurisdiction of the Upper Tribunal (Lands Chamber)
Section 84 grounds for discharge or modification
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

29.
Assets of Community Value
Introduction
What land assets are affected?
Land which is not of community value and which cannot be listed
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
Exemptions to the moratorium provisions
Compensation and enforcement
Enforcement

PART VII - ENFORCEMENT OF PLANNING CONTROL

30.
Enforcement of Planning Control
Introduction to planning control
Enforcement of planning control

PART VIII - TREE PRESERVATION ORDERS, TREES IN CONSERVATION
AREAS AND HEDGEROWS

31.
Tree Preservation Orders, Trees in Conservation Areas and Hedgerows
Tree preservation orders
Trees in conservation areas
Hedgerows

Index
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