Our specialist solicitors advise landowners and occupiers on necessary wayleave applications, wayleave agreements and tree lopping orders, helping to protect property interests and secure the best possible outcome.
A wayleave agreement is a form of contract that concerns the provision of overhead cables and wires passing over land. A wayleave agreement is personal and does not “run with the land” – at first instance its terms may only be enforced by the contracting parties (n.b. below).
Wayleave agreements more typically concern power lines which are the focus of this article (but n.b. they can also concern telecommunications equipment).
Landowners with electricity equipment including overhead lines, supporting poles, staywires and transformers situated on their property may find themselves in conflict with National Grid Electricity Transmission plc, UK Power Networks and other relevant electricity distribution companies (together the ‘Licence holders’) from time to time. Particularly where the Licence holder wants to come onto private property to undertake maintenance work (including tree work around their equipment) or where a landowner wants to have equipment removed from, or diverted way from passing over, their land (in whole or part).
The expectation is that there will be a wayleave agreement or easement in place which documents agreed and accepted arrangements between the Licence holder and landowners/occupiers in this regard. But in many cases the position may be undocumented, particularly where property has changed hands over the years, or an earlier wayleave agreement has expired. In those circumstances there may be an implied wayleave or a Licence holder may be required to seek a necessary wayleave to authorise the equipment upon/ passing over private land.
In the absence of a binding/valid legal agreement (i.e. an enforceable Wayleave agreement) National Grid and other Licence holders can fall back on a range of compulsory powers set out in the Electricity Act 1989. In addition to conferring powers on the licence holder to pursue a compulsory purchase order for the acquisition of land/creation of new rights by compulsion to enable the installation of new/retention of existing electric lines, a licence holder may apply for a necessary wayleave to secure the rights to install/keep installed an existing electric line. For example where there an existing wayleave has expired/there is no current wayleave agreement.
Such necessary wayleaves are not registered against title but will be enforceable against the current landowner and successors in title/occupiers during the period the wayleave is in force (usually fifteen years).
Landowners/occupiers may request the removal of such electrical equipment from their property which may in itself trigger a necessary wayleave application where the licence holder does not agree to such a request and is unable to agree other terms with the landowner through negotiation.
There is a detailed statutory process which governs how such requests are determined; landowners typically have the right (should they wish) to insist upon a hearing in person, otherwise the matter will be dealt with by written representations.
There is an opportunity through both the written representations procedure and the public inquiry route to challenge the need for such orders and/or to seek the incorporation of appropriate safeguards for landowners and occupiers into any resulting order which may be confirmed following such process.
A similar process exists where the licence holder wants to undertake tree lopping works on private land to maintain safety standards and clearances and has served a notice on the owner and occupier, to which the owner/occupier objects. In such case the Secretary of State may be asked to consider making an order for tree felling or lopping of trees and shrubs.
Our specialist team can help you to understand your legal rights and remedies, to include whether there is a binding Wayleave Agreement. We will provide you with appropriate advice and action to ensure that Licence holder proposals do not unlawfully or unfairly prejudice you, your property and your financial interests.
In terms of formal applications (necessary wayleave/lopping etc) we can proactively manage all steps of the procedure; to include the making of representations to secure the best outcome permissible by law.
Our solicitors are members of the Compulsory Purchase Association (CPA) and National Infrastructure Projects Association (NIPA), but also recognised in Chambers and Partners and Legal 500 for their expertise in large schemes of this type.
Where there is a legal entitlement to reimbursement of your legal costs we claim these on your behalf, striving at all times to make our involvement cost-neutral where we can. Noting however that, absent a formal Order, the Licence holder will not willingly pay any costs of opposing a necessary wayleave or similar application – but costs of negotiating and finalising terms of a wayleave agreement typically are/can be recovered.
In all cases we can offer fixed-fee advice. It is common that we will seek an appropriate costs undertaking from the Licence to ensure that property owners are provided with the advice that they need at the outset to ensure that their rights are not unlawfully, or unilaterally, interfered with. But, as above, if our instructions are to make representations (objections) then the Licence holder will not agree to pay these.
Further details are available here.
If you are an owner or occupier of property over which electricity equipment is situated and you have been served with notice of an application for a necessary wayleave and/or a tree lopping order, please do not hesitate to contact Holmes and Hills LLP for advice and guidance as to your next steps.
If you have any concerns over the impact of a scheme on your land or property, or indeed any other compulsory purchase issue, our CPO solicitors are able to help.
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