Electricity - necessary wayleaves: guidance for applicants, landowners and occupiers – 2022 update

Circumstances in which a necessary wayleave application may be made

18. The legislation recognises two situations:

A. Where the application for the grant of a necessary wayleave relates to a new electric line; and

B. Where it relates to an existing electric line.

A - Applications for the grant of a necessary wayleave for a new electric line

19. The circumstances in which an application may be made for a necessary wayleave for a new electric line are set out in paragraph 6(1) of Schedule 4 to the 1989 Act.

20. Where a licence holder wishes to apply for a necessary wayleave to install a new electric line on, under or over land, it must first serve a notice on the landowner and/ or occupier of the relevant land requiring him to provide the wayleave within a period specified in the notice.

21. If, after reasonable enquiry, the licence holder is unable to ascertain the name and/or address of a landowner or occupier, it can serve notice by addressing the notice to 'the owner' or 'the occupier' ofthe affected land (describing the land to which the notice relates). It should hand deliver the notice to some person on the premises who appears to be resident or employed on the land. Alternatively, the licence holder should conspicuously affix the notice to some building or object on or near the land. Photographic evidence that the notice has been affixed in this way would provide helpful confirmation that this procedural step has been observed. A copy of the notice should accompany any subsequent application for a necessary wayleave.

22. The period specified in the notice must be at least 21 days. The notice should be accompanied by a statement that, if a wayleave is not either granted by the landowner/occupier on the terms requested or on terms and conditions which may be agreed between the landowner/occupier and the licence holder, then the licence holder may exercise its right to make an application for a necessary wayleave to the Scottish Ministers. Such a statement should be accompanied by a copy of this guidance or an electronic link to where the landowner or occupier may access it.

23. On receipt of the notice from the licence holder requiring the grant of a wayleave, the landowner and/ or occupier may decide to;

a) Grant the wayleave on the terms requested by the licence holder, or on alternative terms and conditions which have been agreed between the licence holder and the landowner and/ or occupier. This would constitute a voluntary wayleave arrangement between the parties and no further procedure would be required; or

b) Refuse to grant the wayleave; or

c) Grant the wayleave, but on terms and conditions which differ from those requested by the licence holder and which are not agreed with the licence holder.

24. In circumstances where the landowner and/ or occupier has elected to follow b) or c) above, then the licence holder may make an application to the Scottish Ministers for the grant of a necessary (compulsory) wayleave. An application for a necessary wayleave cannot be made until the period specified in the landowner and/ or occupier notice has expired. Any applications made before the specified notice period has expired will be rejected, but there is no upper time limit for submission of an application for a necessary wayleave.

B - Applications relating to an existing electric line

25. The circumstances in which an application may be made for a necessary wayleave for an existing electric line are set out in paragraphs 6(2) and 8 of Schedule 4 to the 1989 Act.

26. In cases where an existing wayleave has expired or is about to expire, the landowner and/or occupier to whose land the wayleave relates may serve a notice on the licence holder requiring the electric line and apparatus to be removed (commonly referred to as a "notice to remove").

a) In the case of existing wayleaves which have been terminated by the landowner and/ or occupier in accordance with a term of the wayleave (which may include a requirement to serve a separate notice of termination; the period for service of the notice of termination will be specified in the existing wayleave document), then the notice to remove may be served at any time following termination.

b) In the case of existing wayleaves which have expired in accordance with the timescale specified in the wayleave, notices to remove may be served at any time after the date falling three months before the wayleave expiration date.

c) In the case of existing voluntary wayleaves agreements which have expired by reason of a change in ownership or occupation of the land, the notice to remove may be served at any time following the change in ownership or occupation.

27. When serving a notice to remove, landowners and/ or occupiers should use the template form shown at Appendix 1. Although use of the template form is not mandatory, it will assist all parties to simplify the procedure going forward if used. If the template is not used and the wording of the notice to remove leaves any doubt as to the landowner's and/ or occupier's intentions, then the licence holder should check the situation with the landowner/ occupier as appropriate. If it is the landowner and/ or occupier's intention to request removal, then the licence holder should guide them to the Scottish Ministers' template document so that they can provide the correct information. Notices to remove should be sent by the landowner/ occupier by post or by email to the appropriate licence holder at the addresses below:

Scottish and Southern Energy Power Distribution

Central Wayleave Registry
SSE plc
10 Henderson Road
Inverness
IV1 1SN
wayleave.registry@sse.com

Scottish Power

Wayleaves
SP Energy Networks
55 Fullerton Drive
Cambuslang
Glasgow
G32 8FA
wayleavesnorth@sppowersystems.com

28. There is no requirement for the landowner and/ or occupier to copy notices to remove to the Scottish Ministers.

29. In some cases, landowners/ occupiers serve a notice to remove when they wish an existing electric line to be removed and relocated along an alternative route. In those circumstances, landowners/ occupiers should provide details of the alternative route or location sought in the notice to remove. This will allow licence holders to begin addressing the merits of that alternative proposal before submitting an application for a necessary wayleave to retain the existing electric line. The landowner/ occupier should provide the licence holder with sufficient information to clearly identify the location and/ or route of the proposed alternative and should explain why the alternative is preferred to the existing location.

30. On receipt of a notice to remove, the licence holder is obliged to comply with its terms and to remove the electric line and apparatus from the land within three months from the date of the notice (although there is no obligation to comply with any alternative route proposed by the landowner and/ or occupier in the notice to remove).

31. However, if an application for a necessary wayleave or a compulsory purchase order is made within three months from the date of the notice to remove, then the existing wayleave continues temporarily until the application has been determined. The licence holder is not obliged to remove the electric line during the application process. If the necessary wayleave application is refused or the compulsory purchase order is not confirmed, the licence holder must remove the electric line within one month of the decision, unless the Scottish Ministers specifically allow a longer period for removal.

An application for a necessary wayleave to retain the existing line may be made at any time following receipt of the notice to remove and during which the line and any associated apparatus remain in situ. If a notice to remove has been served and an application for a necessary wayleave or compulsory purchase order is made after the date falling three months from the date of the notice to remove, then there are no temporary retention rights associated with the existing electric line.

Landowners and occupiers should be aware that service of a notice to remove triggers a statutory process in which they will be required to participate. The statutory requirement on the licence holder to submit an application within three months to avoid having to remove the electric line at the expiry of that period may reduce the licence holder's ability to negotiate a voluntary agreement for retention of existing electric lines. Landowners and occupiers are strongly encouraged to consider whether engaging in dialogue with licence holders early to reach an agreement voluntarily may be more advantageous than proceeding directly to the necessary wayleave process by service of a notice to remove.

Amendments to existing necessary wayleaves

32. There is no process by which licence holders can apply to amend or vary an existing necessary wayleave granted by the Scottish Ministers. Nor can the necessary wayleave process be used to vary or amend an existing voluntary wayleave.

33. The Scottish Ministers take the view that, if a proposed amendment to an electric line or supporting apparatus differs from that permitted under an existing wayleave (whether the existing wayleave is a necessary wayleave or a voluntary wayleave), then the proposal represents a new electric line in respect of which a new wayleave will be required. The procedure for necessary wayleaves for a new electric line should be adopted in relation to the amended line, in addition to any application for retention of the existing line which may be required in the circumstances.