Rural Estates Newsletter Spring 2021 - Flipbook - Page 11
Exercising access rights
The rights granted by a successful Request (Access Rights) will not be unfettered. The
Access Rights will be tailored, should contain a schedule of conditions and a schedule
of authorised surveys, and will generally only be valid for one year. In addition to any
conditions there are three key statutory requirements in the exercise of Access Rights:
• They may only be exercised at “any reasonable time”,
• 14 days’ notice must be given before entry to occupied land, and
• Whoever exercises the rights must provide evidence of their authority to do so and
state the purpose of that entry before entering.
While the Inspectorate processes Requests, they are not responsible for policing
compliance with authorisations granted. They are not the equivalent of a local planning
authority with associated planning enforcement powers. Instead, it is a matter for
landowners and their solicitors to agree appropriate action to seek compliance with
conditions. Caution must be taken, since it is an offence to obstruct access to a person
exercising Access Rights. This latter point may be important if your land is tenanted. The
Inspectorate notes that Requests and Access Rights relate to authorisation to enter ‘any
land’ for the specified purpose and does not distinguish between landowner and tenant.
Any authorisation is likely to apply irrespective of whether land is tenanted.
“
Within the conditions imposed on any successful Request there should be provision for the
making good of damage to the reasonable satisfaction of the landowner. There is also a
statutory right to compensation for damage caused which can be claimed from the person
exercising the right of entry; disputes can be referred to the Lands Tribunal.
The deck is stacked against landowners who wish
to resist on point of principle because they dislike
a proposed NSIP.
Is resistance futile?
Each Request will be highly sensitive to facts and circumstances and so no blanket
assurance can be given about the best way to resist. They can be resisted but the deck is
stacked against landowners who wish to resist on point of principle because they dislike
a proposed NSIP. It is far more beneficial for landowners to agree commercial terms for
access under licence.
It should also be held in mind that a Request and its subsequent implementation are the
early moves in a longer game. The Prospective Applicant will use the information gained to
inform its application for a DCO and its future negotiations with landowners.
Rural Estates Newsletter
Spring 2021
11
