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

William Webster, Robert Weatherley

Edited by: With a foreword by The Right Honourable Lord Neuberger of Abbotsbury

ISBN13: 9780854903030

Previous Edition ISBN: 9780854901975

Published: June 2024

Publisher: Wildy, Simmonds and Hill Publishing

Country of Publication: UK

Format: Hardback

Price: £145.00

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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).

Subjects:: Property Law, Planning Law, Wildy, Simmonds and Hill

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