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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Highways and utilities Highways Agreements
Highway Development Control aims to ensure that developments do not have a detrimental impact on road safety, traffic and the environment. It also encourages:
to reduce the need to rely on the car.
The Highway Authority can only make recommendations. When considering a planning application or development proposal, the Highway Authority may:
offer no objections
request planning conditions (which may include developer contributions to facilitate the provision of a safe access or sustainable transport measures)
request refusal on highway grounds
Town and Country Planning Act 1990, s 106 agreements may require the developer to contribute to facilities including affordable housing, open space and sustainable transport measures. Highways Act 1980, s 278 agreements are used where a developer requires work (other than simple access) to be carried out to a highway. They may:
require a contribution (often 100%) towards the cost of works
appoint the developer as the Authority's agent to carry out the works (in which case the agreement must be supported by a bond)
require a contribution towards the future maintenance of the completed works
The general arrangements for the highway works must be agreed before signing a s 278 agreement and bond, after which full engineering drawings must be formally approved.
Where a planning application involves new estate roads developers must design them to standards approved by the Council. After planning permission is granted and before commencing construction, developers must enter into an agreement and bond under Highways Act 1980, s 38 to cover road construction. Unless a s 38 agreement is in place developers must lodge a deposit with the Council under the Advance Payment code.
Stopping up and diversion
Development works that encroach upon the highway create an unlawful obstruction, and the highway authority may require their removal. The grant of planning permission does not automatically mean that a diversion or stopping-up order will be made.
If the development has been completed consider the use of alternative statutory powers:
Highways Act 1980, s 116 contains powers for the stopping-up or diversion of highways of any class - the applicant must satisfy the magistrates' court that the highway is unnecessary or can be diverted to make it clearer to, or more convenient for, the public. Notices must be served on owners, occupiers and statutory undertakers. Notice must also be given to parish and district councils, as well as being placed in the press
Highways Act 1980, s 118 provides for the stopping-up of footpaths and bridleways that are no longer needed for public use - if objections are made the application must be referred to the Secretary of State for confirmation. Neither the Secretary of State nor the council may confirm a diversion order unless they are satisfied that the new path would be substantially as convenient to the public as the old route. They must also be satisfied that it is expedient to confirm the order, having regard to the effect that the diversion would have on the public enjoyment of the path or the way as a whole.
These orders do not require the consent of the landowner over whose land the path is to be diverted. However, compensation is payable by the order-making authority to the owners and occupiers of land over which the path has been diverted for any depreciation in value of their interest.
The water, gas, electricity, communications and energy industries enjoy statutory rights of access onto private land to lay pipes, wires, cables and other service infrastructure.
Landowners without private services rights may be able to require a supplier to use its compulsory purchase powers in order to comply with its 'duty to connect' and facilitate a development project.
However, once Flood and Water Management Act 2010, s 42 comes into force in full there will no longer be an automatic right to connect a private sewer or lateral drain to a public sewer under Water Industry Act 1991, s 106(1). Once Flood and Water Management Act 2010, s 42 is in force, the right to connect will be subject to the entry into of an adoption agreement under Water Industry Act 1991, s 104 containing provisions governing
the build standards, and
adoption of the drain or sewer by the sewerage undertaker
Developers will, therefore, need to approach the statutory undertaker at an early stage to start negotiations on adoption agreements and agree the technical details of the proposed connection.
The powers of each utility are given by industry-specific statutes. Despite broad similarity of approach, each utility has a specific compensation regime. Certain regimes limit the compensation to an amount equivalent to the depreciation of value of the land over which rights are exercised, rather than open market value.
Electricity Act 1989 authorises bodies authorised to generate, transport or supply electricity to acquire a wayleave to install an electric line on, under or over private land, together with rights of access for inspection, maintenance and replacement. The wayleave arises where the owner or occupier fails to respond to a notice requiring him to grant the wayleave or gives it subject to conditions unacceptable to the electricity company. The electricity company may request the Secretary of State to grant the wayleave. Before doing so, however, the Secretary of State will give the owner and occupier an opportunity to put their case.
Electricity Act 1989 also contains provisions that override any rights of the owner or occupier to terminate wayleave arrangements.
Water and sewage
Water Industry Act 1991 gives a water or sewerage undertaker power to lay pipes above or below ground, and grants rights of access for inspection, maintenance and alterations.
A 'relevant pipe' includes a water main, a service pipe and a main sewer, although powers to lay service pipes are more restricted. The undertaker's rights are only exercisable after reasonable notice has been given to the owner and occupier of the land. At least three months' notice is required for new pipes.
A code of practice approved by the Secretary of State sets out best practice in respect of access arrangements, temporary fencing, land drainage and restoration. Sewerage undertakers also have a statutory duty to ensure that an area is 'adequately drained'. That duty is enforced through the statutory scheme by Ofwat. Individual owners or occupiers affected by flooding or sewage overflow cannot bring a private claim in nuisance.
The electronic communications code (the 'Code') sets out the powers enjoyed by authorised operators to install apparatus.
Code powers are generally conferred by written agreement with the occupier of land. The Code allows the operator to apply to the county court for an order dispensing with the need for agreement. The court may confer those rights on such terms (including the amount of compensation and consideration) as it considers would have been fair and reasonable if the agreement had been given willingly.
The occupier's consent does not bind the freeholder or a superior landlord so they are entitled to give notice requiring the operator to remove his equipment and restore the land. However, if the operator serves a Code counter-notice the owner must apply to the county court for an order to remove the apparatus. The Code requires the court to protect public access to electronic communications networks and services.
The Gas Acts permit the installation of pipes and other apparatus in the adopted highway. However, if a public gas transporter wishes to lay pipes on private land, it must resort to its compulsory purchase powers.
Pipe-lines Act 1962 permits a private pipeline promoter, such as an oil or chemical company, to obtain a Compulsory Rights Order to lay a pipeline and carry out ancillary works on private land. Pipe-lines Act 1962 and supporting regulations establish the procedure for:
applying for and publicising the order
the treatment of objections, and
the possible holding of a public inquiry or hearing into those objections
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