KB-2023-002277 - [2025] EWHC 1880 (KB)

It is necessary to refer in more detail to the statutory scheme for the grant of wayleaves contained in the 1989 Act. Under that scheme, following the termination of a contractual wayleave, an electricity licence holder – such as SEP – may apply to the SoS for the grant of a wayleave (the ‘necessary wayleave’) under para. 6 of Schedule 4 to the 1989 Act. That paragraph provides:

“6.(1) This paragraph applies where—

(a)

for any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on, it is necessary or expedient for a licence holder to obtain the right to instal and keep installed an electric line on, under or over any land; and

(b)

the owner or occupier of the land, having been given a notice requiring him to give the necessary wayleave within a period (not being less than 21 days) specified in the notice -

(i)

has failed to give the wayleave before the end of that period; or

(ii)

has given the wayleave subject to terms and conditions to which the

licence holder objects;

and in this paragraph as it so applies “the necessary wayleave” means consent ... to instal and keep installed the electric line on, under or over the land and to have access to the land for the purpose of inspecting, maintaining, adjusting, repairing, altering, replacing or removing the electric line.

(2)

This paragraph also applies where—

(a)

for any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on, it is necessary or expedient for a licence holder to keep an electric line installed on, under or over any land; and

(b)

the owner or occupier of the land has given notice to the licence holder

under paragraph 8(2) below requiring him to remove the electric line;

and in this paragraph as it so applies “the necessary wayleave” means consent for the licence holder to keep the electric line installed on, under or over the land and to have access to the land for the purpose of inspecting, maintaining, adjusting, repairing, altering, replacing or removing the electric line.

(3)

Subject to sub-paragraphs (4) and (5) below, the Secretary of State may, on the application of the licence holder, himself grant the necessary wayleave subject to such terms and conditions as he thinks fit; and a necessary wayleave so granted shall, unless previously terminated in accordance with a term contained in the wayleave, continue in force for such period as may be specified in the wayleave. …”

Paragraph 7 of Schedule 4 provides for compensation on the grant of a necessary wayleave.

Paragraph 8 provides for the temporary continuation of wayleaves following the termination of a contractual wayleave, thus:

“Temporary continuation of wayleaves

8(1) This paragraph applies where at any time such a wayleave as is mentioned in paragraph 6 above (whether granted under that paragraph or by agreement between the parties) —

(a)

is determined by the expiration of a period specified in the wayleave;

(b)

is terminated by the owner or occupier of the land in accordance with a term contained in the wayleave; or

(c)

by reason of a change in the ownership or occupation of the land after the granting of the wayleave, ceases to be binding on the owner or occupier of the land.

(2)

The owner or occupier of the land may—

(a)

in a case falling within paragraph (a) of sub-paragraph (1) above, at any time after or within three months before the end of the period specified in the wayleave;

(b)

in a case falling within paragraph (b) of that sub-paragraph, at any time after the wayleave has been terminated by him; or

(c)

in a case falling within paragraph (c) of that sub-paragraph, at any time after becoming the owner or occupier of the land by virtue of such a change in the ownership or occupation of the land as is mentioned in that paragraph,

give to the licence holder a notice requiring him to remove the electric line from the land; but the licence holder shall not be obliged to comply with such a notice except in the circumstances and to the extent provided by the following provisions of this paragraph.

(3)

Where within the period of three months beginning with the date of the notice under sub-paragraph (2) above the licence holder makes neither—

(a)

an application for the grant of the necessary wayleave under paragraph 6 above; nor

(b)

an order authorising the compulsory purchase of the land made by virtue of paragraph 1 of Schedule 3 to this Act,

the licence holder shall comply with the notice at the end of that period.

(4)

Where—

(a)

within the period mentioned in sub-paragraph (3) above the licence holder makes an application for the grant of the necessary wayleave under paragraph 6 above; and

(b)

that application is refused by the Secretary of State,

the licence holder shall comply with the notice under sub-paragraph (2) above at the end of the period of one month beginning with the date of the Secretary of State’s decision or such longer period as the Secretary of State may specify.

(5)

Where—

(a)

within the period mentioned in sub-paragraph (3) above the licence holder makes an order by virtue of paragraph 1 of Schedule 3 to this Act authorising the compulsory purchase of the land; and

(b)

that order is not confirmed by the Secretary of State,

the licence holder shall comply with the notice under sub-paragraph (2) above at the end of the period of one month beginning with the date of the Secretary of State’s decision or such longer period as the Secretary of State may specify.”

The effect of these provisions is that where, as here, the landowner has served a notice on the licence holder to terminate a contractual wayleave (under paragraph 8(1)(b)), a ‘notice requiring him to remove the electric line from the land’ may be served following that termination (paragraph 8(2)(b)). The licence holder is obliged to comply unless ‘within the period mentioned in sub-paragraph (3) above the licence holder makes an application for the grant of the necessary wayleave under paragraph 6 above.’ The period specified in sub-paragraph (3) is three months beginning with the date of the notice to remove.