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

Consideration of the necessary wayleave application

Procedure adopted by the DPEA

55. Before determining an application for a necessary wayleave, the Scottish Ministers must afford the occupier and, if different, the landowner of the land an opportunity of being heard.

56. The ECU will refer all validly lodged applications to the DPEA where a landowner or occupier is identified. The DPEA will arrange for the application to be considered by an independent Reporter appointed by Scottish Ministers. The Reporter will usually be a specialist such as a planner, surveyor, engineer, architect or lawyer.

57. On receipt of an application from the ECU, the DPEA will contact affected parties to confirm arrangements and include details of the person at the DPEA to whom all future correspondence in relation to the case should be addressed. The DPEA will ask the landowner/occupier to confirm whether they wish to be heard or wish to make representation by way of written submission before the application is determined. If the landowner/ occupier does not respond to the DPEA within 28 days of the date of its letter, then it will be assumed that the landowner/ occupier does not wish to take the opportunity of being heard.

It is important that landowners and occupiers respond to the DPEA within the 28 day period outlined in the DPEA's letter, since a failure to respond will be treated as meaning that the landowner/ occupier does not wish to be heard before the application is determined.

The landowner/ occupier response to the DPEA's letter will inform the process to be following going forward.

58. If the landowner and/ or occupier wishes be heard, either a hearing or a public local inquiry will be held. These both involve an oral process, where those involved will state their case in person, in front of the Reporter. The Electricity (Compulsory Wayleaves) (Hearing Procedure) Rules 1967 set out the procedure to be followed. A hearing takes the form of a structured discussion led by the Reporter. A public inquiry is normally a more formal event, where witnesses give their evidence in front of the Reporter and can be cross-examined by other parties (normally by their legal representatives), similar to what you might see in the law courts. The DPEA will decide whether a public local inquiry session or a hearing session is more appropriate in the circumstances of the case.

59. The DPEA will propose a date on which to hold the inquiry or hearing. While the DPEA will try to meet the wishes of all parties on timing, the Scottish Ministers' responsibility to act expeditiously on applications may in exceptional circumstances lead the DPEA to impose a date if agreement cannot be reached. In circumstances where requests are made for an inquiry or hearing into two or more necessary wayleaves relating to the same electric line, the Scottish Ministers will usually consider it appropriate to hold concurrent or conjoined hearings.

60. Once a date is agreed, the DPEA will arrange a suitable venue for the inquiry or hearing which will be near to the location of the existing or proposed electric line or, alternatively, the inquiry of hearing will be held via video or audio conference.

61. Written submissions may be used as an alternative means of considering any landowner and/ or occupier objection to the grant of a necessary wayleave. This process will be used where the landowner/ occupier does not wish to participate in an oral process, but would nonetheless like to make some representation in relation to the application, in cases where the Reporter is content that the written submissions procedure is appropriate to allow him to consider all evidence relevant to the application. This is a quicker, more simple and normally cheaper method of considering an application than an inquiry or hearing. It involves the licence holder and the landowner/ occupier stating their cases in writing for consideration by the Reporter, with an opportunity to comment on each other's statements. The written submission removes the need for either party to appear in person.

62. Where the landowner/ occupier indicates that he does not wish to be heard by the Scottish Ministers before the application is determined, then the Reporter will determine the most appropriate procedure to be adopted. This may involve a public inquiry session, a hearing, written submissions or determination of the application without further procedure. The means of disposal will be a matter for the Reporter's discretion, having regard to any representations made by the parties and the information accompanying the application.

63. In most cases, the Reporter will inspect the site in addition to the other procedure used to examine the application.

64. In all cases, the Reporter will set out a timetable to be followed for people to provide the information relevant to the Reporter's consideration of the application. A failure by any party to provide information requested by the Reporter, to attend scheduled hearings, or to otherwise participate in the necessary wayleave process may lead to the application being determined and the necessary wayleave being granted or refused without their views being taken into account. Late submissions may be returned to the sender and may not be taken into account when a decision is made on the application.

65. Where a landowner or occupier fails to engage in the necessary wayleave process or does not wish to be heard by the Scottish Ministers before the application is determined, then the Reporter may recommend a determination on the application on the basis of the information accompanying the licence holder's application without further procedure, where the Reporter considers it appropriate to do so. It is therefore incumbent upon the licence holder to ensure that their applications are accompanied by sufficient information to allow the Scottish Ministers to identify and assess whether the grant of the wayleave is necessary or expedient in the circumstances of the case in the event that the application is to be determined without further procedure.

66. The DPEA publishes information and correspondence relating to live necessary wayleave applications on its website. This allows you access to key documents on the Scottish Government's file which will be taken into account before a decision is made on a necessary wayleave application.

Purpose and scope of the Reporter's consideration

67. Before granting a necessary wayleave, the Scottish Ministers must be satisfied that it is either (i) necessary or (ii) expedient to install and to keep the electric line installed. The Reporter will wish to examine evidence which informs his consideration of these two tests.

68. In scope, the Reporter's consideration of a necessary wayleave is focused more on establishing the effect of private land interests, rather than matters of a more general planning nature. Accordingly, there is no right for third parties to participate and evidence may, at the request of the licence holder or landowner and/ or occupier, be given in private. Evidence that will be relevant at a necessary wayleave hearing is site specific, for example, the effect of the electric line in question on farming (crops and livestock), on the use of machinery, on wild flora and fauna and, in the case of an overhead line, on the outlook from buildings situated on the land in question. Other relevant evidence is likely to be the cost of any suggestions for local diversions of the application route and, in the case of an overhead line, the location of supporting structures on the land in question.

69. Matters of a more general nature, such as planning considerations that are not site-specific, will not normally be treated as appropriate for detailed consideration by the Reporter. Such matters are more properly considered in the context of the separate section 37 (of the 1989 Act) consent or planning application process, which allows all those affected by a proposed electric line to make representations to the Scottish Ministers or the planning authority as appropriate.

70. Licence holders must indicate in their necessary wayleave application whether there are any associated live applications, for example for planning permission or for section 37 consent for the proposed electric line. Where possible to do so, the DPEA will conjoin its consideration of separate but related applications. A Reporter will not ordinarily be appointed until the DPEA has received information on all related applications which are relevant to consideration of the application.

Compensation

71. Questions of compensation in respect of a necessary wayleave will not be addressed by the Reporter when making a recommendation on whether a necessary wayleave should be granted, 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.

72. The Scottish Ministers have no power under Schedule 4 to the 1989 Act to prescribe financial conditions in any necessary wayleave case or to resolve disputes on the level of compensation. Compensation will fall to be settled by agreement between the parties or, failing agreement, by the Lands Tribunal for Scotland at the request of either party.

Costs

73. Landowners and occupiers have no legal entitlement to claim their professional costs incurred as part of the statutory necessary wayleave process, although licence holders may on occasion offer to meet landowners' or occupiers' reasonable professional costs incurred in the negotiation of voluntary wayleaves or servitudes. The licence holder should clearly tell people what professional fees, if any, they are willing to meet when engaging in the necessary wayleave process.

74. Nor is there any legal entitlement for either party to make a claim for expenses associated with the necessary wayleave hearing, inquiry or written submissions process. Everybody who participates in the necessary wayleave process will be expected to cover their own expenses. The application procedures support parties being able to make a case to the Reporter by themselves. However, if parties employ a professional agent, such as a planning consultant, architect or lawyer, they will have to cover their fees at their own cost.