Land law and infrastructure

Land law is a set of legislations that governs how property is owned and used. It outlines the rights and interests of different parties over specific plots of land and anything on it or attached to it. This makes land law one of the widest spanning areas of legislation, covering areas such as ownership and rights, dispute resolution, transfer and conveyance, charges and leases and licenses.

There are a huge number of different bills which dictate UK land law, some of which date back to ancient history. Central bills include the Law of Property Act 1925, which is foundational to the main principles of land law, the Land Registration Act 2002 and the Land Charges Act 1972, which cover land registration rights. 

It’s also worth noting that land law differs between UK countries. This is because the jurisdictions of England and Wales, Scotland and Northern Ireland are governed by different legal systems. Although there are some UK-wide pieces of legislation, it’s important to understand the nuances between the different systems. 

There are a huge range of terms used in land law. Here are a few of the key definitions relevant to the infrastructure planning and development processes. 

Chattels

A chattel is a piece of personal property that can be removed from a building or area of land. Unlike a fixture, it has been added to a building or area of land to allow for better enjoyment and can be removed without causing significant damage. When land is sold, chattels remain the property of the original owner unless otherwise specified in the contract of sale.  

Determining whether an item is a chattel or fixture can be important when determining overall valuations for the purposes of sale and compensation. These determinations can also be used for dispute resolutions, including for leases. Items such as carpets, lighting and removable equipment are usually considered chattels. 

Fixtures

A fixture is an object that was originally movable (chattel) but has been so fixed into the land or a building that it’s now legally considered part of it. If ownership is transferred, fixtures are automatically transferred with the land to a new owner. To determine whether something is a fixture or not, two legal tests are used. 

The degree of annexation measures how permanently the object is fixed into the land, including the method of attachment. The purpose of annexation has to prove why the object was attached to the land; if it was done to permanently or substantially improve the land, then it’s considered a fixture. Electricity pylons, wind turbines and solar panels are usually considered fixtures. 

Corporeal Hereditament

Corporeal hereditament are tangible parts of a property or area of land which are inheritable from an owner. These items can be seen and used within the land’s boundaries. Alongside any buildings and fixtures, this term includes the soil, crops, vegetation and any substances below the surface, such as minerals. 

Incorporeal Hereditament

Incorporeal hereditaments are non-physical elements of a property or area of land that can be inherited from an owner. They cannot be touched or seen, but do hold value. This can include easements, such as rights of way, and rights or profits related to corporeal property, such as timber, minerals or oil. 

Restrictive covenant

A restrictive covenant is a contract that limits what a landowner can do with their property. They are usually found within the title deeds of a property or piece of land. Unless they’re removed or adapted through law, they will be transferred with the land to new owners. If they’re breached, it can result in legal action, fines or some type of enforcement. 

Common land

Common land is an area that’s privately owned but is subject to ‘rights of common’, giving the public legal protection to use the land for specific purposes. Set out under historical law, these purposes can include grazing animals or recreational activities such as walking. Rules and restrictions on common land vary between different areas. 

Wayleaves

Wayleaves are a temporary type of access agreement between a landowner or occupier (grantor) and a third party (grantee). This gives the grantee the right to access the land for the purposes of installing, operating or maintaining fixtures, such as electrical poles or cables, in return for a one-off payment. They’re usually negotiated for 15 to 20-year terms. 

Easements

Easements are rights held by a third party to use another person's piece of land for a particular purpose. Easements have to be registered on the titles of both properties to take effect. 

These rights can be expressed in deeds, implied through circumstances or acquired through long, continuous use (known as prescription). Examples include rights of way, parking access or drainage. 

Exclusive possession

Exclusive possession is the legal right to control parts of land to the exclusion of any other parties. Determining exclusive possession is essential for establishing a lease and is protected under law, even if the right isn’t exercised. Examples could include the lease over a property, which means they can prevent anyone, including the landlord, from entering without permission. 

Adverse possession

Adverse possession is when someone has gained a claim of legal ownership on land they’ve occupied continuously without the owner’s permission. To claim successfully, individuals have to prove they have a sufficient degree of physical control (factual possession) and a clear intention to exclusively possess the land. 

Registered land claims can be made after 10 years of adverse occupation. On unregistered land, the occupation period is 12 years. 

Development Consent Order (DCO)

A DCO is a legal mechanism used to grant permission for major infrastructure projects to be constructed and maintained on a piece of land without the landowner’s consent. Introduced under the Planning Act 2008, they’re designed to streamline the planning process by consolidating multiple rights and permissions under a single order. 

Compulsory purchase

Compulsory purchase is a set of legal powers that allows land to be acquired by certain bodies without the landowner’s consent. These are leveraged during the development and regeneration of public infrastructure projects. They also give landowners the right to financial compensation to mitigate the impact of the compulsory purchase. 

Although various pieces of land legislation may have an impact on the planning and development of infrastructure, there are two main influential bills. 

Infrastructure Act 2015

Alongside turning the Highways Agency into a government-owned business, Highways England, the Infrastructure Act 2015 was also designed to streamline the planning and development process for large-scale projects. This included: 

• Giving the Homes and Communities Agency and Greater London Authority powers to sell off surplus and redundant public sector properties or land
• Making changes to the Town and Country Planning Act 1990 to cut down project delays and speed up the planning procedure
• Improving the efficiency of the Nationally Significant Infrastructure Project (NSIP) regime with technical and administrative improvements
• Giving powers to compel landowners to act on invasive non-native species (INNS)
• Digitising the Land Registry’s local land charges register to speed up turnaround times and improve data access

Planning and Infrastructure Bill

This bill is also designed to accelerate the planning process for infrastructure projects. It’s hoped the passing of this legislation will fast-track 150 planning decisions on major economic infrastructure projects. It will do this by: 

• Reforming the NSIP regime, with national policy statements now required to be updated every five years
• Requiring developers to make a contribution to the nature restoration fund via Natural England, which is now responsible for preparing environmental delivery plans
• Modernising local planning committees through the National Scheme of Delegation, the Mandatory Member Training and the Composition of Committees
• Reimplementing Strategic Planning Authorities and Spatial Development Strategies, which will set out development policies and specify necessary infrastructure
• Strengthening the powers of development corporations, which bring together planners, developers and local planning authorities

Land laws have a direct impact on the planning and development of infrastructure projects. Navigating ownership and access rights, dispute resolutions, consents and acquisitions can cause delays and extra costs if they’re not built into a land strategy. With our expertise and experience, the Dalcour Maclaren team have the knowledge to help you ensure that land law is adhered to.