There are several ongoing projects to upgrade and improve the networks of electricity lines that transport electricity across Scotland. Network upgrades are of course brought into sharp focus with the race to net zero and development of renewable energy projects across the country.
To install and improve electricity lines, power companies - electricity licence holders - need rights over farms, estates and other private land. As such, landowners may be asked to sign a wayleave granting these rights to a power company (occupiers are also affected by wayleaves, and references to landowners below can be taken to include occupiers).
What is a wayleave?
A wayleave is a contract between a landowner and a utilities provider (e.g. a power company) which grants permission to use the landowner's property for specific purposes. A wayleave for electricity lines typically grants permission to a power company to install or upgrade and keep electricity lines and associated equipment on the landowner's property, and rights of access for maintenance and repairs.
A wayleave agreement may be reached voluntarily between the power company and the landowner. Certain power companies (electricity licence holders) can also apply to the Scottish Ministers to impose a wayleave on the landowner without agreement, this is known as a 'necessary wayleave'. The Scottish Government has recently updated its guidance on necessary wayleaves for electricity lines.
When can a necessary wayleave be applied for?
Where a power company intends to apply for a necessary wayleave for a new electric line they must serve a notice on the landowner giving at least 21 days for them to grant a wayleave. If the landowner does not grant a wayleave on terms accepted by the power company within the timeframe, the power company may make an application for a necessary wayleave once the 21 day notice period has expired.
A power company may also make an application for a necessary wayleave in the event that the landowner serves a 'notice to remove' on the power company, requiring them to remove their existing equipment within 3 months. The power company is not required to remove their equipment during the necessary wayleave application process.
Procedure for applying for a necessary wayleave
To apply for a necessary wayleave the power company makes an application to the Scottish Ministers. When an application is made, the affected landowner will be notified and given an opportunity to be heard by a reporter before the application is decided. Landowners must respond within 28 days in order to have the right to be heard. This will either be in the form of a hearing, which is a structured discussion led by the reporter, or a public inquiry, which may include witnesses giving evidence to the reporter and cross examination by the other parties. Alternatively, a landowner may opt to participate through a written submission process which will usually be cheaper. If affected parties do not want to be heard, the reporter will adopt such procedure they consider appropriate - that could mean a hearing or inquiry process, written submissions, or no further procedure at all.
After any formal process and consideration of the wayleave application, the reporter will make a recommendation to the Scottish Ministers who will decide whether or not to grant the wayleave, and the terms of any wayleave granted. It will be based on the necessary wayleave standard terms although the terms may be varied depending on the circumstances. Once granted, a necessary wayleave will remain in force for a specified period, typically 40 years, during which time it is enforceable by the power company against subsequent landowners should the land change hands.
Where a necessary wayleave is granted, the landowner is entitled to claim compensation for the grant of the rights which will include any depreciation in value suffered by the land over which the rights are granted (the wayleave corridor) and the wider landholding of which it forms part.
Other deeds granting rights in land
Aside from wayleaves, power companies may seek rights over private land through other types of deed, including deeds of servitude, leases, licenses and option agreements. Our previous blog provides more detail on both wayleaves and other deeds that landowners may be asked to sign.
Coming to an agreement
In practice, it is common for a necessary wayleave application to run in tandem with negotiations for a voluntary wayleave agreement, as landowners may be more likely to agree a voluntary wayleave where the alternative is a necessary wayleave being imposed.
When coming to an agreement, landowners should take care to ensure that they are being fairly compensated, and that the terms of the wayleave are fair so that there are sufficient protections in place for them and the rights in favour of the power company are not overly far reaching.
