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

Appendix 5 - Frequently Asked Questions

1. Who can apply for a necessary wayleave?

Any holder of an electricity transmission, distribution or other electricity licence holder authorised under Schedule 4 of the Electricity Act 1989. The ability to apply for a necessary wayleave is subject to any restriction contained in the licence itself.

2. Can the licence holder make an application for a necessary wayleave to install or retain an electric line on, over or under a house or land which has planning permission for a house?

Where the necessary wayleave application relates to a new electric line, the Scottish Ministers cannot grant a necessary wayleave where the land is covered by a residential dwelling or planning permission exists for a residential dwelling be constructed, unless the electric line is to be placed underground.

The same restriction does not apply where the application relates to an existing electric line.

3. What is the definition of an "owner" and an "occupier" under the Electricity Act 1989?

The 1989 Act does not provide a definition of "owner" or "occupier". The Scottish Ministers take the view that the "owner" is the registered heritable proprietor of the land. Benefited proprietors are not covered by this definition. The Scottish Ministers take the view that the "occupier" is any person who has lawful possession of the land, including temporary possession.

The Scottish Ministers will rely on landowner and occupier information contained in the necessary wayleave application form and will not undertake any investigation to confirm the position. The Scottish Ministers will ask the licence holder to provide additional information in circumstances where there is a dispute as to the identity of relevant landowners/ occupiers or where there is a change of landowner/ occupier following the date of submission of the necessary wayleave application.

4. What do the Scottish Ministers consider to be a valid notice to remove?

A notice to remove an electric line must be made by the landowner/ occupier in writing and delivered to the relevant licence holder. The notice should make it clear that the licence holder is being asked to remove the line/ apparatus from the landowner and/ or occupier's land.

The Scottish Ministers have provided a template notice to remove. Use of the template is not mandatory, but Scottish Ministers expect the template notice to remove to be used in most cases.

5. Who will address questions in relation to the validity or competence of a necessary wayleave application?

The ECU will check applications to confirm whether the application has been lodged in accordance with the procedural requirements of the 1989 Act. This initial check will not prevent the Reporter appointed to consider a case from considering arguments in relation to competence or from requesting additional information where required to inform his consideration of the application.

The ECU will refer all applications where a landowner or occupier has been identified to the DPEA.

The DPEA will consider all substantive issues in relation to the application when making a recommendation to the Scottish Ministers, including the validity or competence of the application.

Ultimately, only the law courts can make a binding ruling on the legality or validity or competence of any decision by the Scottish Ministers to grant or to refuse to grant a necessary wayleave.

6. Is pre-application consultation with landowners and occupiers mandatory?

There is at present no legislative requirement for licence holders to engage with landowners or occupiers before submitting an application for a necessary wayleave, however, the Scottish Ministers expect licence holders to engage with landowners and occupiers affected by a necessary wayleave at the earliest opportunity and at least before submission of an application, unless there are exceptional reasons which mean that it is not possible to do so. Applications should narrate the engagement with landowners and occupiers and how concerns expressed have been reflected in the final proposals.

Pre-application consultation can reduce the time and cost associated with the necessary wayleave application and determination process as it allows landowner and occupier concerns to be addressed at an early stage in the process.

7. How long does the necessary wayleave application process take?

Scottish Ministers will seek to process applications as quickly as possible, to reduce the uncertainty for parties involved. The timescale for the process will depend upon the procedure adopted, as described in more detail at paragraph 78 of this guidance. However, as a broad indication, parties should expect the necessary wayleave process to take between 9 – 18 months from the date of submission of an application by the licence holder to the date of a decision being issued.

8. In what circumstances will the application be sisted/ the procedure postponed?

Necessary wayleave applications will be sisted/ postponed only in very limited circumstances, as described at paragraphs 51 and 52 of this guidance.

Licence holders should only submit an application when they are ready to proceed to a hearing/ inquiry. Landowners and occupiers should be aware that service of a notice to remove triggers the statutory necessary wayleave process in which they will be expected to participate.

9. Is a hearing mandatory in all cases?

A hearing is mandatory where the occupier and, if different, the landowner of the land to which the necessary application relates wishes to be heard by the Scottish Ministers.

Licence holders have no right to request a hearing, although they will be entitled to participate in any hearing held at the request of the occupier/ landowner.

In cases where the occupier and/ or landowner have indicated that they do not wish to take the opportunity of being heard, the Reporter will determine the process to be applied.

10. What is the procedure for necessary wayleave hearings?

The hearing process is governed by the Electricity (Compulsory Wayleaves) (Hearing Procedure) Rules 1967.

The DPEA will contact parties to confirm the procedural requirements of the process adopted, including the information to be provided by parties and the date by which representations are to be received.

11. Can the Scottish Ministers consider compensation matters?

No. The Scottish Ministers have no powers to attach financial conditions to any necessary wayleave granted or to determine the levels of compensation payable by the licence holder to the landowner/ occupier. Financial compensation is a matter to be agreed between the parties or, if agreement cannot be reached, by the Lands Tribunal for Scotland under separate proceedings.

Questions of compensation in respect of a necessary wayleave will not be addressed by the Reporter at the necessary wayleave hearing, although issues which relate to the impact on the use or enjoyment of the land which may subsequently be the subject of a claim for compensation may be considered by the Reporter.

12. Can the Scottish Ministers make an award of costs?

No. There is no provision for the Scottish Ministers to make an award of costs of any party involved in the necessary wayleave process. Parties should be prepared to meet their own costs, including any professional fees incurred.

13. For how long do necessary wayleaves remain in force?

The duration of a necessary wayleave will be specified in the wayleave document itself. Necessary wayleaves will generally be granted for a period of 40 years from the date on which they are granted. The Scottish Ministers consider that 40 years represents an appropriate balance between the need for certainty in electricity transmission and distribution and the interests of landowners. Parties who consider that, if granted, a necessary wayleave of a shorter or longer period would be more appropriate because of particular circumstances should give their reasons as part of their evidence.

Necessary wayleaves can only be terminated after the period specified in the condition attached to the wayleave.