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

On 4 August 2016, Bodorgan served notice on SEP to terminate the contractual wayleave. There is no issue as to the validity of that notice.

On 2 November 2016, SEP uploaded material to the digital portal maintained by the SoS for the purpose of enabling distribution network operators, such as SEP, to apply for a statutory wayleave under Schedule 4 of the 1989 Act. While this was referred to by SEP contemporaneously as an ‘application’ for a necessary wayleave, there is no dispute that such an application could not be made until Bodorgan had given notice to remove the Apparatus from the land, which had not occurred in November 2016.

On 17 February 2017, Bodorgan gave notice to SEP to remove the Apparatus from the land. Again, it is not in dispute that that notice had the effect of beginning the period of three months under Schedule 4, paragraph 8(3) of the 1989 Act during which SEP was required either to make an application for the grant of the necessary wayleave, or, although of no relevance to the present case, make an order authorising the compulsory purchase of the land, failing which it was obliged to comply with the notice to remove.

On 12 May 2017, an employee at SEP emailed an official of the SoS asking whether the notice to remove should be attached to the ‘existing application’, or if a new application should be set up. The official replied, again on 12 May 2017, that as the application ‘is yet to be processed, then the NTR may be added to the application.’ The notice to remove was uploaded on 12 May 2017 to the portal.

On 23 May 2017, Mr Tibbetts, a surveyor retained by Bodorgan wrote to the SoS asking for confirmation that SEP had made an application for a necessary wayleave following the notice to remove. On 24 May 2017, Mr Tibbetts then spoke to an official of the SoS. It appears that the official indicated that the application had been made on 2 November 2016. In a subsequent email on that date, Mr Tibbetts asked whether the application had been made on the basis of the notice to terminate, and said ‘this would have been a little premature.’

Within the SoS’s department, there was then some confusion as to whether the 4 August 2016 notice to terminate provided for 12 months’ notice, rather than 6 months, and as to whether there had been a valid notice to remove. This led to the SoS writing to SEP on 6 July 2017 saying that it would be necessary for SEP to submit a new application, and this was repeated on 18 July 2017. On 22 August 2017, SEP sent an email to the SoS saying that SEP was surprised to be asked to submit a new application. The SoS changed his position, on 24 August 2017 writing to both Bodorgan and SEP stating that the SoS ‘considers that a valid application was made by [SEP] on 12 May 2017 to [the SoS]…’ and that as SEP had submitted an application for a necessary wayleave within three months of the notice to remove, the existing wayleave was temporarily continued until the application was determined by the SoS. On 24 August 2017, in addition, the SoS asked the portal administrator to amend the date of the application submitted on 2 November 2016 to 12 May 2017.

The correspondence between SEP and the SoS in May-August 2017 was not fully disclosed to Bodorgan until later. Nevertheless, on 14 August 2017, Bodorgan’s solicitors had written to the SoS contending that any application made on 2 November 2016 was premature, and that SEP had made no valid application within three months of the date of the notice to remove. After receipt of the SoS’s letter of 24 August 2017, Bodorgan’s solicitors wrote on 5 September 2017 asking for a copy of any application dated 12 May 2017, as well as objecting to the use of the written representations procedure – as provided for in the Electricity (Necessary Wayleaves and Felling and Lopping of Trees) (Hearing Procedures) (England and Wales) Rules 2013 - for the determination by the SoS of the application for a necessary wayleave. Bodorgan again objected to the written representations procedure on 16 December 2017. The consequence was that the SoS appointed an inspector to conduct an oral hearing and submit a report. That process was the subject of repeated agreed postponements to permit negotiations between Bodorgan and SEP.

On 16 May 2023, Bodorgan issued its Claim Form in the present proceedings. The Particulars of Claim pleaded that SEP had failed to make an application for a necessary wayleave within the three month period specified in paragraph 8(3) of Schedule 4 of the 1989 Act. It was further stated that the SoS had been joined because he had failed to confirm that he would accept the decision of the court as to the validity or otherwise of the application made on 2 November 2016 (which was called ‘the Application’). The Prayer for Relief included, as (1), ‘A declaration that the Application is invalid and of no effect and that the proceedings consequent upon it should be terminated.’ In addition, Bodorgan sought possession of the land, a declaration that SEP was not entitled to maintain or use the land after 17 May 2017, and an order restraining SEP from entering or using the land.

SoS issued his application to strike out the Particulars of Claim insofar as they related to SoS, or for summary judgment, on 3 October 2023.