Essential Law for Landowners and Farmers, Fourth Edition

309 Pages·2002·3.808 MB·English

Essential Law for Landowners and Farmers
Fourth Edition
Essential Law for
Landowners and Farmers
fourth edition
Angela Sydenham
Birketts Solicitors, Ipswich
Bruce Monnington
Country Land and Business Association
Andrew Pym
Chartered Surveyor
Blackwell
Science
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In Memoriam
Michael Gregory
Contents
Preface to the fourth edition xi
1 Introduction to Land Law 1
1.1 General principles 1
1.2 The legal estates 2
1.3 Legal interests 3
1.4 Equitable interests 4
1.5 Registration of title 6
2 Farm Business Tenancies 12
2.1 Introduction 12
2.2 Meaning of farm business tenancy 12
2.3 Termination of a farm business tenancy 17
2.4 Rent 19
2.5 Fixtures and compensation 23
2.6 Dispute resolution 27
2.7 Notices 29
3 Agricultural Holdings Act Tenancies 31
3.1 Introduction 31
3.2 Definitions 31
3.3 The tenancy agreement 32
3.4 Fixed equipment 32
3.5 Rent 34
3.6 Security of tenure 36
3.7 Compensation 39
3.8 Succession tenancies 42
3.9 Disputes procedure 45
4 Residential Protection of Farm Workers 47
4.1 Introduction 47
4.2 The Rent (Agriculture) Act 1976 47
4.3 The Housing Act 1988 53
4.4 The Rent Act 1977 56
4.5 The Protection From Eviction Act 1977 57
4.6 Shorthold tenancies 57
5 Business Tenancies on Farms and Estates 60
5.1 Introduction 60
5.2 Agricultural Holdings Act tenancies 60
5.3 Farm business tenancies 60
viii Contents
5.4 New tenants 61
5.5 The legal nature of a lease or tenancy 61
5.6 The Landlord and Tenant Act 1954 Part II 62
5.7 Stamp duty 67
5.8 Registration 68
6 Public Access 69
6.1 Introduction 69
6.2 Public rights of way 69
6.3 Limitations on land use causd by public rights of way 72
6.4 Access to open land and registered common land 80
6.5 Towns and village greens 84
7 Planning 86
7.1 Introduction 86
7.2 The need for planning permission 86
7.3 The General Permitted Development Order 88
7.4 Obtaining planning permission 96
7.5 Specific planning issues 100
7.6 Listed buildings, conservation areas and other
designated property 103
7.7 Appeals 108
7.8 Enforcement of planning control 111
7.9 The development plan 114
7.10 Government guidance 117
8 Compulsory Purchase and Compensation 118
8.1 Introduction 118
8.2 The legislative background 118
8.3 The power to acquire land compulsorily 120
8.4 The assessment of compensation 124
8.5 The Critchel Down rules 135
9 Utilities - Rights and Wayleaves 137
9.1 Introduction 137
9.2 Wayleaves 137
9.3 Works in the highway land and private tracks 138
9.4 Electricity 140
9.5 Telecoms 144
9.6 Gas 146
9.7 Water resources and drainage 149
9.8 Water and sewerage 152
9.9 All other pipelines 156
Contents ix
10 Liability of the Occupier of Land 158
10.1 Impact of land use 158
10.2 Insurance 158
10.3 Negligence 159
10.4 Occupiers' liability 159
10.5 Nuisance 162
10.6 Strict liability - Rylands v. Fletcher 168
10.7 Straying animals 169
10.8 Trespass 171
11 Water and Watercourses 174
11.1 Responsibility for water management 174
11.2 Land acquisition 175
11.3 Riparian rights 175
11.4 Water abstraction 176
11.5 Impounding water 180
11.6 Stocking fishing lakes 181
11.7 Land drainage and flood defence 181
12 Sporting Matters 185
12.1 Sporting rights 185
12.2 Protection of wildlife 187
12.3 Game laws 189
12.4 Poaching of game 189
12.5 Firearms 191
12.6 Fishing 193
12.7 Poaching of fish 199
12.8 The Environment Agency 200
12.9 Hunting 200
Appendix to Chapter 12 202
13 Environment 207
13.1 Introduction 207
13.2 Water pollution 207
13.3 Other pollution control measures 209
13.4 The codes of practice 210
13.5 Contaminated land 211
13.6 Fly tipping 216
13.7 Waste disposal 218
13.8 The Hedgerow Regulations 1997 223
14 Milk Quotas 224
14.1 Introduction 224
14.2 The milk quota system 224
14.3 Special quota 225
X Contents
14.4 Transfer of quota 225
14.5 Leasing of milk quota 230
14.6 Milk quota and tenancies 230
15 Employment 235
15.1 Introduction 235
15.2 Employment Tribunals 235
15.3 Employees or self-employed workers 236
15.4 Engaging a worker 238
15.5 Breaches of contract 242
15.6 Rights under the employment legislation 242
15.7 Discipline 244
15.8 Dismissal 244
15.9 Redundancy 247
15.10 Change in ownership of business 251
15.11 Health and safety at work 253
16 Rating and Council Tax 254
16.1 Rating 254
16.2 Council Tax 261
Further Reading 265
Table of Cases 266
Table of Statutes 271
Table of Statutory Instruments 287
Index 290
Preface to the fourth edition
It is eleven years since the third edition of this book. There have been many
changes to the law during that time, not least the introduction of the farm
business tenancy.
Whilst acknowledging the debt we owe to Michael Gregory and Margaret
Parrish, the original authors of the book, we have taken the opportunity in
this edition to revise the format and extend the content. Chapters 1, 2, 5
and 13 cover new topics and there has been a complete rewrite of Chapters
3, 4, 6, 7, 8 and 9. The other chapters have been substantially updated.
The book states the law at 31 January 2001. However, new legislation and
cases mean that the law is constantly changing.
Therefore, readers should not rely on this book alone when trying to
resolve their legal problems. Moreover so short a book, covering such a
wide range of topics, can be no more than an introduction to the areas of
law with which the landowner and farmer is likely to be involved. It is
important therefore that professional advice should be taken from lawyers
and land agents on individual problems.
All three authors have worked for the Country Landowners and Business
Association.
In our capacity as legal advisers and as a rural practice surveyor we have
answered numerous questions relating to land ownership and use. As in
previous editions we have concentrated on those problems which cause
most trouble and generate most queries. While many issues affecting land
are decided in the courts on the basis of the law, some are dedicated by
authorities or inspectors exercising their discretion, in the light of gov-
ernment policy, having heard wide ranging evidence. For that reason the
chapters on planning, compulsory purchase and utilities have been written
by a surveyor.
Our hope is that this book will prove useful to landowners, farmers and
their advisers, students studying agricultural law and their teachers.
Essential Law for Landowners and Farmers, Fourth Edition
Angela Sydenham, Bruce Monnington, Andrew Pym
Copyright © 2002 by Blackwell Science Ltd, a Blackwell Publishing Company
Chapter 1
Introduction to Land Law
1.1 General principles
Land law is a complicated area of the law. There are several reasons for
this. Land is permanent. Many of the rules were originally developed in
feudal times. Although the law has changed to meet the needs of modern
society, it reflects not a clean sweep but a continuous historical growth
over many centuries.
Land being a scarce resource can never remain wholly within the con-
trol of private individuals. Economic and political factors have led to state
intervention in many areas most notably in housing and planning law.
A further complication is the abstract theory of land law which enables
many estates and interests, both present and future, to exist in the same
piece of land.
When William I conquered England he considered himself to be the
owner of all English soil. In order to reward his supporters he granted
them rights over land in return for certain services. One baron might
provide ten armed horsemen each year for the king, another might per-
form ceremonial rights. These tenants in chief (about 1,500 were recorded
in 1086 at the time of the Domesday Book) could in turn grant rights to
others for services rendered to them, and so on. There emerged a feudal
pyramid with the king at the apex and the actual occupants at the base.
After 1290, however, the ability to create new tenures was abolished.
Technically, therefore, land is owned by the Crown. Its subjects own
not the physical soil but an estate in the land. An estate in this context
has a special meaning. It is not the physical parkland and farms, but an
abstract entity interposed between the tenant and the land. Tenant here
means one who holds freehold land of a superior lord. Today all such
tenants hold directly from the Crown. It is in this sense that joint owners
of freehold property are called either joint tenants or tenants in common.
The tenant is given specific rights and powers for a period of time. In the
sixteenth century in Walsingham's case this principle was expressed as
follows:
'The land is one thing and the estate is another thing, for an estate in the
land is time in the land, or land for a time, and there are diversities of
estate, which are no more than diversities of time.'
The estate indicates the period of time that the tenant enjoys in the land.
He may have a life interest or a fee simple, that is an estate which lasts as
long as he has heirs. Should a fee simple owner die without a will, or
without relatives who are entitled to claim under the rules of intestacy, the
property will revert to the Crown. This is the result of the Crown's existing