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

Form and content of necessary wayleave applications

Submission of applications

34. All applications to the Scottish Ministers for a necessary wayleave (whether for a new electric line or to retain an existing electric line) should be on the Scottish Government's application form and should be accompanied by the information specified in Appendix 2. The application should clearly identify the land to which the application relates. A separate application is required for each landowner/occupier interest. Where multiple necessary wayleaves are required in relation to a single project or electric line, each application should clearly identify all related or linked applications. In the latter circumstance, licence holders should contact the Energy Consents Unit (ECU) at econsents_admin@gov.scot as far in advance as practicable to discuss submission arrangements, to ensure efficient processing.

35. Applications for necessary wayleaves should be submitted by the licence holder electronically where possible. Applications may be submitted by email to econsents_admin@gov.scot, or on the ECU online portal, www.energyconsents.scot. Receipt of all such applications will be acknowledged by email. Alternatively, if electronic application cannot be made, the application may be made in writing to the Scottish Government, Energy Consents Unit at Atlantic Quay, 150 Broomielaw, Glasgow G2 8LU. It is recommended that licence holders send their applications by signed for or special delivery post.

36. The ECU will check applications to confirm whether they have been lodged in accordance with the procedural requirements of the 1989 Act. Applications which do not meet the requirements of the 1989 Act will be rejected. The ECU will also check whether the application is accompanied by all relevant supporting information. This initial check will not prevent the Reporter from requesting additional information where required to inform his consideration of the application (the Reporter's role in the necessary wayleave application process is described at paragraph 55 onwards)

37. The ECU will aim to acknowledge receipt of all applications within 10 working days. If receipt is not acknowledged within 10 working days, licence holders are encouraged to contact the ECU to confirm that the application has been received and allocated to a case officer.

38. The ECU will allocate a reference number to each necessary wayleave application which it receives. The reference number should be quoted in all subsequent correspondence with the ECU.

Supporting information

39. All applications should be accompanied by the information specified in Appendix 2, and should include details of the landowners/s or occupier/s where known, along with any relevant contact details such as telephone numbers or email addresses, in order to facilitate efficient processing of the application.

40. The Scottish Ministers expect that all applications will be accompanied by sufficient information to allow the decision maker to identify the terms of the necessary wayleave sought, and to assess whether the grant of the wayleave is necessary or expedient in the circumstances of the case. The Scottish Ministers strongly encourage applicants to include as much relevant information as possible in a supporting statement accompanying the application. This should include a summary of pre-application engagement with the affected landowner and/ or occupier and how any concerns expressed were taken into account in design of the final proposals.

41. In the case of applications for retaining existing electric lines, licence holders should include a response to any alternative route or location proposed by the landowner/ occupier in the notice to remove, where that information is available at the time of submission of the application.

42. The ECU can provide licence holders with pre-application advice on the form and content of applications where required.

Terms of the necessary wayleave sought

43. A necessary wayleave may be granted subject to such terms and conditions as the Scottish Ministers think fit. Any necessary wayleave granted by the Scottish Ministers will be based on the standard terms outlined at Appendix 3. The standard terms are intended to provide some certainty over the form and content of necessary wayleaves, but they are not prescriptive. It is recognised that there will be some circumstances in which a departure from the standard terms will be appropriate. Licence holders should describe in their application whether any departure from the standard terms is sought in the circumstances of the case and should provide a reasoned justification for the departure sought.

44. The standard term of necessary wayleaves granted after the date of publication of this guidance will be 40 years from the date on which they are granted. The Scottish Ministers consider that 40 years represents an equitable period which provides a balance between the need for certainty in the electricity transmission and distribution systems and the interests of landowners and occupiers, who may wish the opportunity to have the continuing operation of the necessary wayleave examined in light of changing circumstances at the end of the wayleave period. Parties who consider that, if granted, a necessary wayleave of a shorter or longer duration would be more appropriate because of particular circumstances, should indicate the period sought in the application and should give their reasons as part of the information accompanying their application.

Related applications

45. The licence holder should identify any related application or appeal that Scottish Ministers may wish to consider at the same time as the necessary wayleave application. This will allow Ministers to consider whether a joint inquiry or hearing might be appropriate. For example, a necessary wayleave application could be considered at the same time as any application for section 37 consent for the installation of the overhead line to which it relates. Multiple necessary wayleaves in relation to the same electric line may be considered at a conjoined hearing, where appropriate to do so. The licence holder should ensure that it carries out any procedures for which it is responsible at the appropriate time to allow Ministers to consider related applications or appeals in step.

Notice of applications to landowners and occupiers

46. There is no requirement for licence holders to notify the landowner and/ or occupier that a necessary wayleave application has been submitted. In the circumstances where a necessary wayleave application has been submitted with respect to an existing line, the ECU will, at the same time as providing acknowledgement of receipt of the application to the applicant, contact the landowners and occupiers identified on the application form as having an interest in the land. The ECU will notify the landowner and occupier that an application has been submitted, will inform the landowner and occupier of their right to be heard before the application is determined and will outline procedure and timescales for referral of the case to the Scottish Government Directorate of Planning and Environmental Appeals ("DPEA").

47. Where an application is submitted with respect to a new electric line, and where in such circumstances the notice has been served in accordance with paragraph 6(1) of schedule 4 to the 1989 Act, the ECU will acknowledge receipt of the application to the licence holder, and refer the application directly to the DPEA thereafter.

48. The ECU will not take steps to confirm the accuracy of the landowner or occupier information contained in the application form. It is therefore important that the licence holder ensures that the information contained in the application is both comprehensive and accurate, since any deficiency in the information provided which leads to an inability on the part of the Ministers to notify affected parties correctly may lead to delay.

Referral of application to DPEA

49. In all cases where an application has been validly lodged and an owner or occupier has been identified, the ECU will refer applications to the DPEA. The ECU will not consider the substance or the merits of any application in advance of such a referral. The ECU will in the case of existing electric lines aim to refer the application to the DPEA within eight weeks of receipt, unless the application is sisted (put on hold) before the date of referral. In the case of applications relating to proposed new electric lines, the ECU will refer the application to the DPEA as early as is practicable.

50. In cases where it has not been possible to identify a landowner or occupier despite reasonable attempts, the ECU will not refer the application to the DPEA, and will proceed to determine the application on the basis of the information submitted.

Sists in limited circumstances

51. Ministers only expect to sist or postpone the decision making process in limited circumstances and only where the application is in respect of an existing line. The licence holder should not make an application for a necessary wayleave unless it is ready to proceed.

52. A sist may be granted where both the applicant and landowner/ occupier make a joint submission to the ECU requesting a sist to allow time for discussion between the parties to achieve a voluntary wayleave. Before deciding to grant the sist, ECU will consider whether there is a realistic prospect of an agreement being reached within a reasonable timeframe. If a sist is granted, proceedings will be delayed for an appropriate specified period not exceeding six months from the date of submission of the application.

53. Requests for a sist should be made to the ECU in writing within six weeks of the date of acknowledgement of receipt of the application/ notification of the application to the landowner by the ECU.

54. To avoid abortive costs associated with the hearing or inquiry process (e.g. cancellation charges for the venue, the Reporter's travel and accommodation etc) the DPEA will generally not agree to sist any application other than in exceptional circumstances.