Discover how companies may have legal access through your property!
Alison Fielden & Co’s May 2019 ARTICLE
Wayleaves
A wayleave is a permission granted, usually to a utility company (most commonly electricity companies), to cross land belonging to another person, with vehicles and equipment and lay or install infrastructure such as underground cables or overhead wires.
A wayleave can be granted by not only the owner of the land but also an occupier including a tenant of the land.
The term Wayleave originated some centuries ago but we would now consider it to be a type of licence, that is, a temporary permission which can be ended by a notice from the person who granted it, and which does not give any permanent interest in land that can be sold or passed on to others.
For this reason the electricity supplier or other body benefiting from the Wayleave will often wish to follow up a wayleave with a more formal arrangement giving permanent rights over the land, for example where underground cables need to be installed. Commonly this would be an ”easement” which looks in many ways similar to a wayleave, but must be granted by the owner of the land concerned not a tenant or other occupier. It would be registerable at the Land Registry as a permanent right over the land.
Sometimes the electricity company will seek a lease of the relevant land, which gives it the exclusive right to occupy that area. This is preferred for example where there is an electricity substation which the electricity company would want to fence off for safety reasons.
A wayleave can sometimes be implied e.g. where the occupier or owner leaves and the new occupier or owner allows the arrangement to continue, or where a fixed term expires and nothing is done about it.
In some cases the Secretary of State can grant the electricity company a statutory wayleave (known as a “necessary” wayleave).
This can arise for instance where an owner or an occupier gives notice to end an agreed wayleave. Statute then gives the company three months to apply for a necessary wayleave. A procedure has to be followed similar to compulsory purchase procedures and this will include a hearing and a formal decision after consideration of the evidence.
With any kind of wayleave ancillary rights can be granted, including tree cutting to protect the installations, and surveys to establish the suitability of the ground for the works intended. In the case of statutory wayleaves these will always be implied but otherwise they must be negotiated.
When buying property which appears to have an electrical infrastructure under, on or over it, it is advisable to check the status of these and consider having any wayleave transferred. A pre-contract search can often be obtained from utility companies to establish exactly what wayleaves exist over particular properties.
For more information please feel free to contact us and ask for Alison Fielden or Phil Stephens at Alison Fielden & Co, The Gatehouse, Dollar Street, Cirencester, GL7 2AN. Telephone 01285 763261 or email alison@alisonfielden.co.uk and philip@alisonfielden.co.uk
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