15 March 2014

Prepared by Malcolm Buck - Solicitor of the Supreme Court of England and Wales

Admitted -October 1988

Solicitors Regulation Authority

No139699

This Advice is not to be treated as a Contract between writer and recipient and neither the writer nor the League Cricket Conference accepts any liability. This Update is as a guide only and Clubs and Leagues are advised to take their own Legal Advice in the event of all questions of Law

The Main Feature looks at the important Law Changes introduced under The Electricity (Necessary Wayleaves and Felling and Lopping of Trees (Hearing Procedures) (England and Wales) Rules 2013 which I term “The 2013 Hearing Rules” and how it will effect Cricket Clubs who own their own grounds.

The Follow On looks again at the Defamation Act 2013 (the subject matter of the December 2013 Update) and also explains a Norwich Pharmacal Order . I also considers the most recent developments with the Term Fracking. It also includes a significant Supreme Court decision on Noise Nuisance of 26^th February 2014. -At present I am advising one Club on the very matter . I also explain the System of Statutory Notice under Sections 79 and 80 of the Environmental Protection Act 1990 and its effect on sports clubs

Westminster Watch this quarter will also be of interest to Cricket Clubs who own their own grounds and the implications arising from Deregulation Bill 2013-14. I also introduce the subject of HS2 and the affect it may have on Clubs between London and Birmingham. I also dispel a rumour!

This Update also introduces for the first time a version of Hotspot and the Decision Referral System

The Main Feature

National Grid and Electricity Distribution Companies (‘Licence Holders’) have a statutory duty to develop and maintain an efficient co-ordinated and economical system for the distribution and transmission of electricity (‘the Duty’). This is set out in the Electricity Act 1989 (“the 1989 Act). To carry out the Duty, Licence Holders need to install electricity lines and apparatus on, over or under private land and rights to go on to private land for the purposes of inspection maintenance and repair of these services (“ the Rights”).

Licence Holders often try to enter into negotiations with a Landowner to exercise the Rights by paying an annual sum to a Landowner in return for the installation and retention of electricity lines and apparatus. This is termed a Voluntary Wayleave. Some Cricket Clubs may have already entered into such an Agreement which is personal between the Landowner and the Licence Holder.

Where agreement cannot be reached and the Licence Holder still wants to install new or retain electricity lines and apparatus on a Club’s Ground- This is called a Necessary (Compulsory ) Wayleave. The Licence Holder under Schedule 4 paragraphs 6 and 8 of the 1989 Act and the 2013 Hearing Rules may apply to the Secretary of State for Energy and Climate Change (“SoSfECC”) for a Necessary (Compulsory) Wayleave. The procedure called “the one step procedure” is as follows

a)The Licence Holder must serve a Notice of Intended Application in an approved form on the landowner under Rule 3(1) of the 2013 Hearing Rules

b)The Licence Holder must then wait 21 days before making an application to SosfECC – applications are sent electronically with a fee of £34.00. A copy of the application must be sent to the Landowner

c)The SoSfECC will ask each of the parties for agreement that the matter is dealt with using the Written Representations Procedure. The Landowner should respond within 30 working days. Where both the Licence Holder and the Landowner consent to the use of the Written Representations Procedure , this will be followed, unless there are exceptional reasons why an Oral Hearing takes place.

d)The SofSfECC must notify all parties of the procedure to be adopted- Written / Oral Hearing. This is called “the Procedure Notice”. The matter will be dealt with by an Inspector appointed by SofSfECC who will prepare a Report and Recommendations upon which the SofSfECC will make a decision. The Licence Holder will be responsible for paying the costs of the Inspector.

e) In deciding whether to grant a Necessary Wayleave there are two central questions

Is it necessary and expedient for an electric line to cross under or over a particular piece of land?
What would be the effect on the use and enjoyment of the land should a Necessary Wayleave be granted?

f)The Cricket Club Landowner who wants to contest the application must submit evidence which is specific to the site in the form of a Statement of Evidence. A Statement must be sent within 30 working days from the date on the Procedure Notice to the SofSfECC. The Licence Holder is also required to provide a Statement of Evidence to answer the two above questions within 30 days (“the Submission Date”) under Rule 4(3)

g)After the Submission Date, the SofSfECC will circulate to each Party the other Party’s Statement of Evidence. Each Party may then make further representation within 10 working days (“the Further Submission Date”)

h)Where a Cricket Club Landowner is late in making the Submissions, it is at the discretion of the SofSfECC whether to put it before an Inspector

I)The SofSfeCC will then appoint an Inspector to consider the Submissions and prepare a Report and Recommendations to enable SofSfECC to make a final decision. The SofSfECC must advise all parties of the Identity of the Inspector- Rule 6(3)

J)The Inspector may ask any Party to provide further Information and may visit the site.

k)The SofSfECC must give to all Parties a Notice setting out his or her decision and the reasons for making the decision together with a copy of the Inspector’s Report. Where the decision differs from the recommendation of an Inspector, the SofSfECC must advise all Parties and give them 15 working days to make any further representations before a final decision is made.

l)Where the SofSfECC grants a Necessary Wayleave, it will usually last for a period of 15 years and crucially “run with the land” so bind’s future owners- Schedule 4 Paragraph 6(6)(b) of the 1989 Act. The same does not apply to Voluntary Wayleaves which are personal to the particular Landowner and Licence Holder.

NOTE 1:- The SofSfECC does not have any power to make an Order for compensation where a Necessary Wayleave is approved. Applications for compensation have to be made to the Land Chamber Upper Tribunal under Schedule 4 Paragraph 7(4) of the 1989 Act.

NOTE 2; Each Party is responsible for its own costs. R v DTI ex parte Healaugh Farms

NOTE 3; Where the application is to retain an existing electricity line or apparatus which is refused, the Licence Holder must remove it within one month or such longer time prescribed by SofSfECC.

NOTE 4; The above procedures may be put into abeyance at any stage where the parties are negotiating a Voluntary Wayleave- Rule 18. This Abeyance Period is not likely to be more than 6 months

The new procedures also cover where a Landowner (the Cricket Club) seeks the removal of an existing electricity line and apparatus from their ground. This is called “the two step procedure”

a) The Club must serve on the Licence Holder a Notice to Terminate where an existing Voluntary Wayleave contains a Break Clause (a clause which allows the Wayleave to come to an end early). The Notice must be served within the time limits set out in the Wayleave.

b) Once the notice period given in the Notice to Terminate has expired, the Club must serve a Notice to Remove in prescribed form on the Licence Holder. An example of the form is contained on the Department of Energy & Climate Change Web Site. It should include a Plan clearly showing the electricity line(s) and apparatus which the Clubs wants removed

c) Upon receipt of the Notice if the Licence Holder wants to retain the line and apparatus, it must apply to the SofSfECC to retain it, following the procedures on pages 1 and 2 of this update

The 2013 Hearing Rules also cover the situation where a Licence Holder requires vegetation management to a tree of shrub on a Cricket Club’s Ground because it poses a risk to the safety and security of the electricity line and apparatus. The procedures are broadly similar to those explained on pages 1 and 2 of this Update namely

a) The Licence Holder will usually hold discussions with the Land-Owner at the outset in exercising its statutory duty contained in the Electricity Safety Quality and Continuity Regulations 2002 which requires that there is a “sufficient” distance between vegetation and overhead power lines

b) The Licence Holder must serve a Notice setting out the tree(s) to be felled, lopped or cut back it roots (“the Proposed Works”) and the risk that such trees have to the safety and security of the supply under Schedule 4 Paragraph 9(2) of the 1989 Act

c) Should the Cricket Club wish to object to the Proposed Works , it must with 21 days of the date of the Notice serve a Counter Notice, the Licence Holder must refer the matter to the SofSfECC for an Order that the Proposed Works may be carried out. The Licence Holder must pay a fee of £34.00, plus the costs of the Inspector appointed to conduct matters.

d) The SofSfECC must then give each party the chance to submit written evidence in support of their case and either Party may elect for the matter to be dealt with by way of Written Representation or Hearing

e) Where the Cricket Club does not respond within the 21 day period, the Licence Holder may come on to the Ground to carry out the works. It must meet all reasonably incurred expenses which the Club has incurred arising from the works being carried out. Usually the Licence Holder would carry out the Proposed Works

NOTE 1; where a Club has a tree or trees the subject of a Tree Preservation Order, the Licence Holder must also follow procedures set out in the Town and Country Planning (Tree Preservation) (England) Regulations 2012- see my Legal Update March 2013 where these regs were explained

NOTE 2; It seems that where a tree or shrub overhangs adjoining land the Notice is only served on the Owner of the Land on which the Tree originates.

HOTSPOT- SO WHERE DOES THIS LEAVE CRICKET CLUBS ?

A Club should assess what (if any) electricity lines and apparatus exist on their land. Where they do exist, Clubs should check within their Deeds whether there is any form of documentation called a Wayleave Agreement and whether they are receiving an Annual Sum from the Licence Holder. The Land Registry do not register Wayleave Agreements on Title Registers, because they are regarded as personal to the landowner and licence holder), so Club Officials may need to ask their Solicitors to check old title deeds.
Clubs are encouraged to follow the Written Procedures, The Healaugh Farm case makes clear that each party must meet its own costs. An oral hearing may be cost problematic where Club comes up against a large wealthy Licence Holder.
Clubs should ask the Inspector to visit the Site.
Where a Club has served upon the Licence Holder a Notice to Remove, where electricity lines or apparatus exist on their Ground under an existing Wayleave Agreement, a Club should be wary of accepting any subsequent payment received from the Licence Holder. The risk is that by accepting the payment or payments over a period of time, that this will create an Implied Wayleave.

The Follow On

The Defamation Act 2013 has introduced a higher test for liability, in that publication has caused or is likely to cause “serious harm to the reputation of the Claimant”. Defences to a Claim are

Truth- the Publisher can show that the imputation conveyed by the statement is substantially true
Honest Opinion – the Publisher will need to show that the statement is an expression of opinion genuinely held and can be based on fact or privileged statement
Public Interest – the statement must relate to a matter of public interest and the Defendant must reasonably the statement to be in the public interest.

I explained in the December 2013 Update the procedural rules for Web Site Operators under the Defamation (Operator of Web-Site) Regulations 2013 and the Defences which exist for Web Site Operators who are not the authors of postings alleged to be defamatory. The key to these defences is that where a Complaint is received about a Posting, the Operator must act expeditiously within the time limits laid out in the Regulations in dealing with a Complaint. Where a Post is removed, it needs to be understood that a Complainant may still apply for what is called a Norwich Pharmacal Order

A Norwich Pharmacal Order is one which requires an Innocent third party mixed up in a Civil Wrong (which for the purposes here is a web site operator including on its site a posting of a defamatory statement) to disclose to a Claimant documents and information that it holds. The Order derives from an Intellectual Property Case of Norwich Pharmacal v Customs & Excise Commissioners 1974. It has been used in a number of recent web site posting cases including in 2009 Lockton Companies International and Others v Persons Unknown & Google Inc. Here Google was required to disclose ID details and subscriber PI addresses to identify the Senders of anonymous e mails.

Where an application which has to be made to the High Court is made, the applicant usually has to pay the legal costs of the third party.

To Frack or Not To Frack That Is The Question?

I do not know what William Shakespeare would have made of Fracking. What I am aware of is that Fracking is becoming a major issue between landowners (and possibly Cricket Clubs therefore) and Energy Companies.

Fracking is a method of extracting gas in which chemically laced water is pumped underground to release quantities of shale gas. Prime Sites for fracking include coalfields and geological areas comprising oil bearing rocks.

Legal Principles

1 The starting maxim is that a land-owner owns everything up to the sky and down to the centre of the earth. This maxim has however been eroded in a series of Court Decisions.

2. An Energy Company needs permission “to frack” on someone else’s land. Permission comprises

a Petroleum Exploration and Development Licence (PED Licence) issued by the Department of Energy and Climate Change (the same Department which deals with the New Rules on Wayleaves explained earlier in this Update)
Planning Permission from the Local Minerals Planning Authority
Consent from the Landowner on whose land the exploration is to take place. However it is here where the controversy could lie as I explain below

3. The Controversy arises, if the Energy Company cannot get consent from the landowner. To come on to land without consent could amount to an act of Trespass. Bocardo v Star Energy 2010 involved the laying of horizontal oil pipes a great depth below B’s Land which was found to be a trespass but due to the depth, landowner B was awarded just £1,000 in compensation. If consent is not forthcoming the present situation is that an Energy Company must apply for a Compulsory Purchase Order under the Mining Act 1966. It is thought that fracking would only cease to be a trespass where drilling is over a mile below the surface

4. However it has been reported last month that Ministers are considering a change that will make it easier for companies to search for shale gas by amending the Law on Trespass to provide that a landowner owns the soil only to the extent “reasonably required for the use of the Property. An alternative is to amend the PED Licence to allow for trespass on to private land.

5. There is then an added worry, as fracking below the surface of one’s land may affect the ability of the landowner to insure their Property. Standard Insurance Cover includes earthquake, seismic shift, landslip and heave. It is argued that the Fracking Process may invalidate the provision of such cover. The Wells and District News Edition dated 20^th February 2014 reported a case of a Home Owner who was turned down by two Insurers, because the Mendip Hills is one of a number of areas in England and Wales designated as a suitable area for shale gas extraction. One question is to what extent will Insurers ask about the proximity of properties to Fracking Sites.

6. Could we see parts of the Country where either fracking or flooding occurs becoming blighted by an inability to get standard Insurance Cover

Noise Nuisance

A Private Nuisance involves a person doing something on their land which they are lawfully entitled to do which becomes a nuisance when the consequence of their acts extends to the land of a neighbour. The starting point on whether a Private Nuisance exists has been to look at the character of the area in which the activity us being carried out. There is the famous statement in the case of Sturges v Bridgeman 1879 – “ what would be a nuisance in Belgravia Square would not necessarily be a nuisance in Bermondsey”

The2014 Supreme Court decision in Coventry and Another v Lawrence and Another, involved noise from a stadium used for speedway and car banger racing, which an owner of property adjoining the stadium alleged was a nuisance because it unreasonably affected the use and enjoyment of their Property. The neighbour sought an Injunction and damages. The Local Authority served an Abatement Notice under Section 80 of the Environmental Protection Act 1990 requiring the stadium owners to take steps to reduce the noise.

The following Principles exist

It is not a defence to a Nuisance Claim to state that the Claimant “came to the nuisance”. This has been long standing Law, which had been applied in one of the most famous of Cricket Court Cases- Stone v Bolton involving cricket balls being hit from a Cheetham Cricket Club on to a neighbouring Property (see my Previous Updates ). The reason for this is that Nuisance is a “Property Based Tort” and therefore runs with neighbouring land which could be affected by wrong-doing on adjoining land
It is likewise not a defence even where the activity can be shown to be authorised by a Planning Permission or is immune from enforcement action for lack of Planning.
There is a possible defence, where it can be shown that it is the change of use of the neighbouring land by the Claimant which has created a nuisance. So for example land abutting a Cricket Ground may have been fallow, but has had residential units built on such land and the new Owners of the units complain about the noise emanating from the ground.
It is possible that a right to commit a noise nuisance may exist through long use for a continuous period of 20 years under the Principles of Prescription. This is because Noise is a Property Based Tort and therefore in the same way that a Claimant cannot be prevented from making a claim simply because they have moved to where a nuisance is being committed, the Defendant on whose land the noise emanates must have the like right to be able to argue that as the noise complained of has existed for at least 20 years, that a right to create such noise emanates . In this case this Defence failed as the Owners of the Stadium were unable to show that the noise was sufficiently excessive throughout the 20 years before the claim was brought.
The existing Character of the Area Test should be widened to include “the established pattern of uses in the locality”. A Court should look at the use made of the land from which the noise emanates, when assessing the character of the locality- Here despite the fact there was planning permission for the use of the stadium for speedway, this could not prevent a neighbouring owner from being able to object on grounds that the activity amounted to a nuisance.

The Supreme Court in finding for the Claimant (the neighbour) then had to decide what form of redress the Claimant should receive. The possibilities were an Injunction To Stop the Noise and or Damages. I have explained previously that the starting principle for a Court in making such decision is the 1895 decision in Shelfer v London Electric Lighting Co In simple terms this is based on a Proportionality Test. Public Policy dictates that a Defendant should not be allowed to simply be able to buy their way out of a nuisance by paying a sum of money to a Claimant. Therefore the burden is on the Defendant on whose land the noise emanates to show that it would be disproportionate to grant an Injunction. In this case the Court held that a Public Interest was important in the provision of a recreational facility allied to the fact that there was Planning Permission for the facility and that therefore the appropriate redress for the Claimant was compensation.

HOTSPOT- SO WHERE DOES THIS LEAVE CRICKET CLUBS

1.This is an important Ruling which Clubs who have troublesome neighbours will need to consider. Clubs who conduct activities such as Net Practice close to a neighbouring Property will have to consider what are reasonable noise reduction measures.

2. The Ruling could be used as a “hammer” by neighbours who have an agenda to rid themselves of a cricket ground abutting their land

3. Clubs need to work with their neighbours to ensure that there can be as far as possible a harmonious relationship between the two bodies.

4. Clubs should also consider the use of “diplomatic scare tactics”- what is better a Cricket Ground used 7 months a year mostly at evenings and weekends or a housing estate used 365 days a year

DECISION REFERRAL SYSTEM

A Local Authority has statutory powers under Sections 79 and 80 of the Environmental Protection Act 1990 to pursue Noise Nuisance. Noise comes within the definition of a Statutory Notice under Section 79(1) (g). A Local Authority can serve an Abatement Notice setting out the steps that need to be taken to address the complaint. Under Section 80, a right of appeal against an Abatement Notice exists to a Magistrates Court, the appeal must be made within 21 days of the Notice.

One case which secured national publicity was in Welwyn Garden City in Hertfordshire where a five a side football pitches were forced to close due to noise in 2012. In that case the pitches had been installed in an existing residential area. A leading case on Noise Nuisance involving Cricket was that of Rushden Town Cricket Club in Northamptonshire. BBC News reported in 2008 the Club had to spend approximately £2.000 in having a Noise Survey prepared, in respect of proposed practice nets.

HOTSPOT- SUMMARY

Do Noise levels from a club ground cause a substantial interference on the use and enjoyment of neighbouring land? Each case will be decided on its facts. The Issue is analogous to Cricket Balls being hit on to adjoining land. The decisions in Bolton v Stone and Miller v Jackson have been discussed in previous updates. What is clear is that Clubs need to be aware of the dangers. A Court may be critical of a decision by the local authority to grant planning permission for housing so close to the cricket ground, but this may not prevent the Court finding in favour of a neighbour resident.

Westminister Watch

The De-Regulation Bill 2013-14- This was laid before Parliament on 23^rd January 2014, as part of this Government’s drive to reduce “red tape”. It will be of interest to Clubs whose grounds include paths which are used by the Public.

Background: Local Authorities are required to keep updated the Definitive Map and Statements which record the existence, location and type of Public Rights of Way. The Map shows Footpaths, Bridleways, Restricted Byways and By-Ways Open To All Traffic (“BOAT), which are known collectively as ‘Protected Rights of Way’. This originated in 1949 and is now governed by The Wildlife & Countryside Act 1981 (the Act”). It is assumed that not all Public Rights of way are recorded; others recorded may no longer be Public Rights of Way whilst some may have the wrong status. The Local Authority receives applications for Modification Orders to the Definitive Map and Statement from both Users and Land Owners, which are governed by Schedules 14 and 15 of the Act. Provisions under the Countryside and Right of Way Act 2000 (CROWA) which are not yet in force provided that Public Rights of Way not recorded on the Definitive Map by 1^st January 2026 will be extinguished

Section 13- Applications to modify the Definitive Map will not be allowed after 1^st January 2026 where the application is based solely on the fact that a Protected Right of Way was not being used as a Public Right of Way before 1^st January 1949. It is argued that this will provide certainty for user of such Rights of Way

Section 14-between 1^st January 2026 and 1^st January 2027, Protected Rights of Ways previously extinguished because they had not been recorded on the Definitive Map and Statement, will be capable of being designated Public Rights of Way by Local Authorities where evidence is provided to show that it should carry this designation

Section 15 is controversial because an extinguished Protected Right of Way can be converted to a Private Right of Way where an adjoining land owner can show that Right of Way is reasonably necessary to access their land. The adjoining land owner does not have to show that they were in fact using the Right of Way as at 1^st January 2026

The Bill also alters the Burden of Proof Test for the Local Authority to make a Modification Order. Currently a Modification Order is made where evidence is adduced to show a Right of Way is “reasonably alleged to subsist”. The new standard of proof test is higher being as in Civil Cases- “the balance of probabilities” that evidence has been produced to show that a Public Right of Way still exists.

HOTSPOT-SO WHERE DOES THIS LEAVE CRICKET CLUBS

1 The Provisions in CROWA will now take affect providing certainty to Clubs whose grounds are crossed by paths used by members of the Public, but which are unrecorded

2. Clubs should assess whether members of the Public are passing over part or parts of their ground. If the answer is in the affirmative, it is important that Clubs act now by visiting their Local Authority and asking to inspect the Definitive Map and Statement which records the presence of Public Footpaths, By Ways Open to All Traffic (BOAT) and Restricted By Way. Where the Map shows no such paths crossing their ground, the Club should not pursue the matter. Where a Map does show such paths as existing the Club needs to decide whether it accepts the existence of such a path and if not consider applying for a modification order

3. Clubs should consider whether adjoining privately owned land which abuts on to their land have a gate or style or other means of entrance which would allow such landowner on to the Club’s Ground and consider whether such user is likely to be an impediment to the Club. Section 15 of the Bill, if implemented is dangerous, especially for a Club who may be considering selling their ground for development.

High Speed 2 Railway

HS2- A Hybrid Bill was submitted to Parliament on25th November 2013 in relation to phase 1-(London to the West Midlands) which will give the Government powers to compulsorily acquire the necessary land and planning permission for this Railway Scheme. In addition High Speed Rail (Preparation)Bill will cover Compensation to Land Owners affected by the Scheme. One issue is how independent will be the Body to determine the levels of compensation.

HOTSPOT-So Where Does This Leave Cricket Clubs

1.Clubs who may be affected by this Scheme are encouraged to act collectively with ECB to ensure that the best outcome can be obtained for their continuing existence.

2. A number of Historic Houses in the West Midlands and Thames Valley are affected by the proposal are working in unison. It would be sensible that affected Clubs also therefore work with their community.

AND FINALLY THAT RUMOUR!

The Vote in the House of Commons earlier this year to ban smoking in cars (“the Ban”) where there are children present was consultative only. The Ban is not yet Law. The Coalition Government need to decide whether to introduce the Ban in Legislation. However the size of the majority for the Ban indicates the importance of Child Welfare and the need to protect Children from harmful conditions. It is hoped that few if any Clubs still pursue a policy of transporting youngsters to away matches (this should be left to the Parents / Guardian of the youngster)- however this Parliamentary Vote re-enforces the Public Policy Consideration of the Child Welfare being paramount .

Legal Update - March 2014