Phil Parkinson, Legal Director at specialist property solicitors JB Leitch, offers an overview on rights to access and statutory wayleaves, including the installation and maintenance of the infrastructure required to provide our communications and wider utilities.

The water, gas, electricity, communications and energy industries enjoy statutory rights of access onto private land to lay pipes, wires, cables and other service infrastructure. However, the powers of each utility are given by industry-specific statutes. 

Despite a broad similarity in their approach, each utility has a specific compensation regime and its own obligations. Certain regimes limit the compensation to an amount equivalent to the depreciation of value of the land over which rights are exercised, rather than open market value. In this context, an overview of the rights, restrictions and entitlements for each of key utilities is set out below.

Electricity

The Electricity Act 1989 (EA 1989) authorises bodies generating, transporting or supplying electricity to acquire a wayleave to install an electric line on, under or over private land, together with rights of access for inspection, maintenance and replacement. 

EA 1989 also contains provisions that override any rights of the owner or occupier to terminate wayleave arrangements. 

Two methods exist for an electricity supply; undertaking to obtain rights enabling to construct or, if already in existence, keep power lines on land. The first is by compulsory acquisition of the necessary land. The second is by acquisition of wayleaves.

Compensation is calculated in accordance with the ‘principle of equivalence’. The claimant’s loss must be completely made good. The claimant must be paid for the value of the land to it (it may have a special value over and above the open market value) not its value generally, or its value to the acquiring authority. 

Three conditions flow from the principle of equivalence—causation, remoteness and reasonableness (or mitigation). Any question of disputed compensation is to be referred to the Lands Chamber of the Upper Tribunal. Compensation may be recovered as a lump sum or by periodical payments or partly in one way and partly in the other.

Water and Sewage

Water Industry Act 1991 (WIA 1991) gives a water or sewerage undertaker power to lay pipes above or below ground, and grants rights of access for inspection, maintenance and alterations. 

A ‘relevant pipe’ includes a water main, a service pipe and a main sewer, although powers to lay service pipes are more restricted. 

A key point to note is that the undertaker’s rights are only exercisable after reasonable notice has been given to the owner and occupier of the land of at least three months’.

Every water or sewerage undertaker must have a code of practice approved by the Secretary of State. This covers matters such as access arrangements, temporary fencing, land drainage and restoration. The undertaker will be liable to fully compensate any person who sustains loss or damage as a result of the exercise of the undertaker’s rights of access.

Individual owners or occupiers affected by flooding or sewage overflow cannot bring a private claim in nuisance. Water undertakers may only be liable for civil claims of loss and damage caused by escaped water in accordance with WIA 1991.

Electronic Communications

The electronic communications code (the ‘Code’) sets out the powers enjoyed by authorised operators to install apparatus. Code powers are generally conferred by written agreement with the occupier of land. However, the Code allows the operator to apply to the Upper Tribunal (the ‘UT’) for an order requiring the relevant person to agree to grant or be bound by a Code right exercisable by the operator. The UT may also make an order for compensation to be payable for the imposition of the agreement.

Code rights will bind any successors in title to the occupier’s interest, such as a landlord, and anyone deriving title out of the occupier’s interest, such as a lessee, at a time when the occupier was bound by the Code right

Gas

The Gas Act 1986 permits the installation of pipes and other apparatus in the adopted highway. However, if a public gas transporter wishes to lay pipes on private land, it must resort to its compulsory purchase powers.

Private Pipelines

A private pipeline operator, such as an oil or chemical company, may obtain a Compulsory Rights Order to lay a pipeline and carry out ancillary works on private land. The Pipelines Act 1962 and supporting regulations establish the procedure for applying for and publicising the order, the treatment of objections and the possible holding of a public inquiry or hearing into those objections.

If the pipeline and ancillary works are a nationally significant infrastructure project then the private pipe-line promotor may alternatively obtain a Development Consent Order for planning consent and compulsory acquisition authorisation to enable the carrying out of the works on private land.

Overall, via a complex matrix of legislation, utility providers are able to install most services upon a development – whether residential, mixed-use or commercial. Freeholders and lessees are unable to validly object in most scenarios, albeit landowners are generally entitled to compensation on terms either agreed between the parties or by the UT and must permit access for maintenance, repair and renewal.

If you wish to discuss your rights or obligations with regard to access or on any of the key points discussed in this article, please feel free to contact me: [email protected].