Disputes arising from the grant of necessary wayleaves are not often the subject of reported cases, but the Court of Session in Edinburgh recently issued a decision confirming that owners or occupiers of land are not entitled to compensation for the period preceding the grant of a wayleave. The decision considered the Electricity Act 1989, a UK wide Act.
The owner of a large waste management and recycling facility sought compensation in relation to the presence of an overhead power line and associated apparatus on its site. In 2010, the landowner had served a notice requiring removal of the power line and apparatus but the energy company responded by lodging an application for a necessary wayleave. Following a hearing before a Reporter, the Scottish Ministers granted a necessary wayleave in August 2014. Although the owner argued that the necessary wayleave should be backdated to the point where an application for a necessary wayleave had been made by the energy company, the Scottish Ministers took the view that the relevant legislation did not permit them to grant the wayleave on a retrospective basis.
It was undisputed that the landowner was entitled to compensation from the date of the Scottish Minister’s decision. The question considered by the Court, however, was whether recompense was also due for the period following service of the notice of removal or, at latest, the date of the application for a necessary wayleave.
The Court had to ascertain the “plain meaning” of the compensation provision within the Electricity Act and found that it provided that the owner/occupier of land is to be compensated only once the wayleave has been granted. The judge concluded that the wording of the provision was unambiguous – he disagreed with the owner’s argument that the compensation should be linked to whether the power line and other equipment were already installed on the land.
The Court also refused to accept the landowner’s argument that the Scottish Ministers’ ability to grant the wayleave, subject to such terms and conditions as they thought fit, could include a condition of retrospective compensation. The Court decided that discretion as wide as this would cut across the specific compensation provisions already set out in the legislation.
This case will be welcomed by those applying for necessary wayleaves, although it may have the result of encouraging landowners to serve the notice of removal of equipment sooner than may previously have been the case in order to minimise the period of time for which they do not receive compensation. The Court did consider the potential prejudice to a landowner or occupier who must tolerate the intrusion of apparatus without receipt of benefit, but noted that in the majority of cases the period between the application and the decision will usually be “very short”.