Flooding
The Environment Agency (EA) aims to protect and improve the environment and to promote sustainable development throughout England and Wales. In recent years the UK has experienced more severe weather which has led to thousands of properties being damaged and livelihoods being ruined. Householders are finding their insurance premiums rising dramatically and in some cases their property becoming uninsurable.
This has led to the Government assigning nearly £300 million to Flood risk management in 2013. It is envisaged more than 64,000 homes are to be protected from the devastating effects of flooding with around 100 new flood defences being approved for construction this year alone. These changing times are even seeing the Government providing additional funding to try and protect householders and local businesses.
Flood defence can be achieved in a number of different ways. However, the EA are currently proposing a large number ‘flood bunds’ across the country. These prevent flooding by restricting water flows during times of flood. While the Environment Agency has statutory powers to compulsorily purchase land (s.154 Water Resources Act 1991) in order to undertake their statutory function they will always look to purchase land by agreement of the landowner wherever possible.
Whilst these schemes are being promoted to protect the local community, consideration needs to be given to the landowners who are adversely affected. These schemes can sometimes have major impacts on farming enterprises and other rural businesses. The Environment Agency has a statutory duty to pay reasonable and proper compensation (Sch 21 Water Resources Act 1991) and is under a duty to cause as little damage as possible and pay compensation for any damage caused. For work within private land, compensation is due for the reduction in value of any interest in the land or any losses, damage or disturbance. Where land is being flooded as a direct result of the proposed scheme, the EA will again pay compensation for the diminution in the land’s value.
We have comprehensive experience in dealing with flood defence schemes and have specialist knowledge which could help you maximise compensation that is due. Please feel free to contact Sherwill Drake Forbes more details on how we can help you when affected by the Environment Agency.
For more information please contact +44 (0) 1908 614248 or mail@sdforbes.com
Landowners are routinely asked by Electricity network operators to sign wayleave agreements for new, or alterations to existing, overhead lines.
This is more common for the 11kV and 33kV wood pole and line networks but can also include some sections of underground cables.
A wayleave is a terminable licence which does not automatically bind future owners of the property. It gives the network operators rights to install and retain their apparatus with annual payments being made to the landowner. A clause usually exists for the landowner to terminate the wayleave on 6 or 12 months notice.
Wayleave documents are often ‘sold’ as being simple documents capable of being read, understood and signed by the landowner. However, any landowner being asked to sign these documents should exercise great caution and take professional advice as:
Whilst the right for the landowner to terminate the wayleave will be expressly set out in the agreement there are overriding rights within legislation for the network operators to apply for the right to ‘retain’ apparatus (usually for a 15 year period).
The annual wayleave payment offered as standard is based on a scale and does not reflect individual circumstances or higher value land uses.
Moreover, landowners are entitled to reimbursement of their fair and reasonable professional costs from the network operator when taking advice to sign a wayleave.
It is usually possible for a professional advisor, acting on behalf of the landowners, to negotiate more favourable terms than the ‘standard’ wayleave documents offered by network operators. This will ensure that, for instance, where electricity lines may interfere with future planned developments appropriate relocation clauses exist. This helps prevent the unwieldy and time-consuming processes of appealing against an application to retain or the need for a landowner to fund the costs of relocation.
Professional advice will also help ensure that appropriate compensation is received. This can include a variation to the scale of wayleave payments where appropriate. Further, additions to the standard clauses can ensure that appropriate compensation is paid for disturbance when installation or maintenance works are undertaken.
Rather than the standard agreement favoured by network operators each wayleave request should involve consideration of the individual factors relevant to the land and property. In addition the successful negotiation of appropriate wayleave terms requires a detailed understanding of the underlying compulsory acquisition rights of the network operator.
Sherwill Drake Forbes would be pleased to offer assistance if you are affected by these issues. In the vast majority of cases our fees will be reimbursed by the network operator. Please do not hesitate to contact us.
PES schemes involve payments to farmers and land managers in exchange for the provision of specified ecosystem services (or actions anticipated to deliver these services) over-and-above what would otherwise be provided in the absence of payment.
Whilst PES may seem to a lot of farmers and land managers to be a recent acronym the reality is that the principles of PES are well established. Consider that the Environmental Stewardship scheme currently pays about £400 million a year in return for more environmentally-sensitive farming.
However, the establishment of PES schemes is not limited to large scale, national government-financed programmes. With increased frequency, farmers and land managers are being approached by local partnerships where a collection of interested parties will jointly fund the management of land for biodiversity, landscape or recreational value. Other schemes may be privately financed, e.g. by water companies paying for upstream flood management.
This last example may help to illustrate the challenge of valuing the appropriate payment for PES schemes. If a landowner is willing to undertake land management options which mitigate the need for a water company to invest in additional downstream treatment works, the range of potential payments is fairly straightforward. As a minimum payment, the farmer would expect his income foregone from agriculture and/or additional costs associated with the management to be met. A theoretical maximum payment that the water company may pay is the cumulative effect of the ecosystem service but this is a complex calculation which may include the cost saving of alternative works, as well as a range of wider benefits including flood relief, fresh water supply, and target compliance.
Defra’s recent publication (Payments for Ecosystem Services) suggests that ‘in practice, the level at which PES payments are set would reflect supply and demand for particular ecosystem services and would be at a consensually-agreed intermediate point between the minimum and maximum values’.
The appropriate valuation of these services is not completely unchartered territory as, for instance, flood relief schemes affecting private land have been largely negotiated by the Environment Agency in recent years rather than reliance on their statutory powers. However the subtle but significant difference is that in the emerging world of PES schemes the service to be valued is often being acquired without the underlying threat of compulsion. Undoubtedly this will increase the valuation of the service but by how much? Also to reach a satisfactory answer, the farmer or land manager’s advisor must undertake a detailed assessment and consideration of the minimum and maximum calculations. This requires deep understanding of both the service provider and buyer as well as an assessment of the ‘commerciality’ or ‘localism’ of a particular service (this last point in itself may be complex as future “multiple-benefit” PES schemes will be encouraged).
In this emerging ‘market’ the Royal Institution of Chartered Surveyors (RICS) have commented ‘It is no exaggeration to say that these developments herald a new paradigm in land management and valuation with far reaching implications for the work of all property professionals’.
Sherwill Drake Forbes are specialist Chartered Surveyors who can assist in unraveling the complexities of these schemes, help bring clarity to the evaluation of opportunities and assess risk against the individual nature of land ownership. For more information please contact us on +44 (0) 1908 614248 or mail@sdforbes.com
The establishment of utilities infrastructure to any development site is critical. However, all too often, whilst considerable attention is taken to establish the site’s planning consent, the legislation governing utility consents is not fully understood resulting in significant impact to the development’s construction timescale. This can frequently lead to situations where to resolve problems, ‘incentive’ or ‘consents’ payments are made to third party landowners to expedite progress. It is also not uncommon for significant diversions from the original routes to be funded by the Developer to ensure connection dates. At worst, site construction has been delayed or mothballed whilst contentious issues are resolved.
Of the three essential utilities, gas, water and electricity, only the Water Industry Act provides the legal powers (and effective resistance to challenges) to the supply companies who are able to serve notice and take entry to land efficiently.
Gas, Electricity and Telecom supplies generally rely on negotiated consents for modern underground installations. If third party consents are required it is not uncommon for these parties to have been original opponents to the development site. The procedures for compulsory acquisition for these connections takes considerable time (often years) and resources, including specialist lawyers.
Other unsatisfactory experiences for Developers include the conflict that exists by way of the Electricity Companies’ separate supply and distribution licences. We have witnessed situations where Developers have been in voluntary negotiations for the removal of existing overhead apparatus (essential for the development’s viability) whilst funding expensive new supplies and diversions. Due to the licence holder’s difficulty in obtaining third party consents the Developers have unexpectedly been forced into additional expenditure at a late stage of the project to fund the ‘engineering solution’.
All of the above situations can be mitigated by ensuring that your project team includes a professional with experience in dealing with these issues from the outset. This will ensure that the appropriate level of commitment and results are sought from the utility companies, at the right stages of the project, to ensure successful connections without unexpected and significant financial outlay.
Sherwill Drake Forbes is a trusted advisor to Developers and should you wish to discuss any of the above and how we can help with your own project please contact +44 (0) 1908 614248 or mail@sdforbes.com
Ofcom (telecoms regulator) has auctioned the 4G mobile spectrum for £2.3 billion – significantly less than £3.5 billion initially predicted. The winners are:
Everything Everywhere (EE) – the joint-venture between Orange and T-Mobile
Hutchinson 3G UK
Telefonica (O2)
Vodafone
Niche Spectrum Ventures – a BT subsidiary
This auction will allow the above winners to launch a 4G service as early as June this year.
Landowner impact
These companies will be looking to upgrade and possibly add equipment to the existing towers and sites that are spread across the UK. Landowners need to be aware of this as it may be an opportunity to renegotiate leases, increase rent provisions and in some cases receive one-off premium payments.
If you are approached by a Telecoms Company in relation to additional equipment or upgrading of existing equipment please do not hesitate to contact a member of the Sherwill Drake Forbes team for more information +44 (0) 1908 614248 or mail@sdforbes.com
Under the Water Industry Act 1991 water and sewerage companies have the powers to enter private land to lay a pipe; to inspect, maintain, adjust, repair or alter any relevant pipe. This is subject to serving a statutory notice and undertaking consultation with the affected landowner.
Compensation is payable to affected landowners and any other person who has a legal interest in the land including tenants or leaseholders. The compensation is based on any reduction in the value of the land caused by the new pipe, together with an allowance for disturbance and actual losses incurred as a direct result of the works being undertaken.
The landowner and/or occupier may employ an agent to represent their interests. The water companies are obliged to reimburse the reasonable costs of necessary professional advice.
Sherwill Drake Forbes have expert, working knowledge of the Water Industry Act. Its surveyors have, in the past, worked for the major utility companies. This powerful combination allows them to recommend the best way to mitigate your losses and maximise the compensation due.
Sherwill Drake Forbes can advise on the legal aspects of the Water Industry and present the options available, make recommendations and obtain the relevant compensation for you when approached by a water Company.
In some instances Water Companies may be required to purchase some private land to undertake its statutory function. While they have the rights to compulsorily acquire land, all parties would prefer the transaction to be undertaken by agreement. Sherwill Drake Forbes has much experience in the purchase and disposal of private land so can ensure that you are maximising the value of your assets.
Sherwill Drake Forbes would be pleased to offer assistance if you are affected by these issues and do not hesitate to contact us; +44 (0) 1908 614248 or mail@sdforbes.com.
The current Telecommunications Code was introduced in 1984 and it is no surprise to many within the industry that having recently completed a review of the code, the Law Commission has proposed reforms. These include:
An overriding objective to maintain the consensual nature of agreements between landowners and the Telecom operators rather than statutorily acquired rights.
To allow freedom for leases to be assigned to other operators. The Law Commission is proposing that operators would be obliged to give notice of any assignments to the landowner.
To address the current situation where leases currently benefit from a dual security of tenure from both code rights and the Landlord & Tenant Act 1954. This often-criticised situation resulted from poor drafting of the original legislation and the Commission is seeking to mitigate litigation by aligning the code with the 1954 Act.
The full consultation can be found by following this link;
http://lawcommission.justice.gov.uk/docs/cp205_electronic_communications_code.pdf
Sherwill Drake Forbes has considerable experience with all Telecom lease issues and also wider utility lease negotiations governed by the Landlord & Tenant Act 1954 and the Telecommunications Act 1984. This includes negotiations for new leases, rent reviews, termination on expiry, assignments, site sharing and sales.
For more information please contact +44 (0) 1908 614248 or mail@sdforbes.com
We have extensive experience in assisting landowners, home owners and businesses affected by road & rail schemes.
Our involvement includes:
The negotiation of compensation where land is taken for new schemes such as HS2 and highway improvements. This includes all representations and securing advance compensation. Please see our guide to Road & Rail Compensation – simplified!
The preparation of Part 1 claims – this is compensation that can be claimed where no land has been taken for a scheme but owned or occupied property has been reduced in value by physical factors caused by the use of a new or altered road. Please see our guide to Part 1 Claims for more information if you are a home or business owner in this situation.
Dealing with access requests received by our clients from Network Rail. This includes situations where a rail bridge or other infrastructure is being repaired. We are experienced in ensuring that our clients enter into robust agreements that safeguard their liabilities and secure appropriate remuneration and land restoration/compensation provisions.
Dealing with issues arising from the electrification of the Great Western Railway – please read our separate note on this issue.
Sherwill Drake Forbes would be pleased to offer assistance if you are affected by a road or rail scheme and in the vast majority of cases our fees will be reimbursed by the acquiring authority. Please do not hesitate to contact us: +44 (0) 1908 614248 or mail@sdforbes.com.
We are often asked to give a brief summary of what compensation is due to landowners affected by a road or rail scheme.
For the majority of schemes, statutory compensation will vary depending on whether or not a landowner has land acquired from them in order to construct the scheme.
If land is acquired for the scheme then compensation is generally claimed under the following headings as applicable to each situation;
Land taken – the market value of the actual area acquired by the authority.
Severance – this applies where the remaining land not taken becomes more difficult to work/less economic – particularly relevant for farms.
Injurious Affection – the reduction in value of retained land and property as a result of the scheme.
Disturbance – can be very diverse and includes time, business losses and expenses.
Basic & Occupiers Loss Payments – for qualifying interests introduced by the Planning and Compulsory Purchase Act 2004.
Fees – the cost of required Chartered Surveyors and Legal fees.
Where land is not acquired for the scheme a landowner may be entitled to compensation if their property is affected by the use of the scheme after construction. In these situations the compensation claimed would vary according to whether it is a residential property or business that is affected;
Residential – for a property owner this would commonly include a claim for the reduction in value of the property.
Business – this can include loss of profits, relocation costs, and time and finance costs. In some cases it may include the total extinguishment of the business and under certain rules you may be entitled to total extinguishment by virtue of your age.
Sherwill Drake Forbes specialise in seeking successful outcomes and maximising compensation for owners and occupiers of farms, commercial and residential premises where the acquiring authority has or intends to exercise its powers of compulsory purchase.
If you are affected by a planned road or rail scheme early professional representation is recommended. In the vast majority of cases our fees will be reimbursed by the acquiring authority.
For more information please contact us on +44 (0) 1908 614248 or mail@sdforbes.com
In The Manchester Ship Canal Company Ltd v United Utilities Water plc the High Court held that a sewerage undertaker had inherited the power, which its predecessors enjoyed before the Water Act 1989 came into force, to discharge water into watercourses.
The Manchester Ship Canal Company Ltd has appealed this judgement and it is now likely to be decided by the Supreme Court.
Landowner implications
Under the Water Industry Act 1991, statutory undertakers have to enter into easements to discharge into privately owned water courses. Whilst the water companies have statutory powers to compulsorily purchase these rights, it is usually undertaken with the landowner’s consent and agreement. However, prior to the Water Industry Act 1991 and the Water Act 1989, the water companies were governed by the Public Health Act 1875 (superseded by the Public Health Act 1936). Under that regime, it was generally accepted and supported by case law that water and sewerage companies could discharge into private water courses without having to enter in to an easement.
If the Supreme Court decides in favour of the Manchester Ship Canal Company Ltd then landowners across the country could find themselves in a position where they can negotiate new easements for any current discharges which were installed prior to 1989.
For more information please contact +44 (0) 1908 614248 or mail@sdforbes.com