In Focus: Wayleaves – what are they and how do they work?

Much of the UK’s electrical network and telecommunications poles and cables are located on private land. To ensure these networks remain operational and to minimise outages, energy suppliers and telecoms companies must be able to gain access to the land to build networks and carry out routine and emergency maintenance.

This is usually granted via wayleave agreement. A wayleave agreement entitles the asset owner or a company working on its behalf to enter private land to erect the infrastructure and carry out all necessary works.

In this article, we take a look at what wayleave agreements are, how they work and the pros and cons of them for landowners.

A wayleave is a contract between the owner or occupier of a piece of land, called the grantor, and a third party, the grantee, giving the grantee a right of access across the land to install or maintain poles, cables, ducts, pylons, and other equipment or infrastructure.

In return for the right of access, the grantor receives compensation, the level of which is set out in the wayleave agreement.

Wayleaves are only used by electrical supply companies and telecommunications businesses for cablings. They are governed by the Electricity Act 1989 in the case of electricity suppliers and the Electronic Communications Code 2017 in the case of telecoms companies.

For large infrastructure schemes, companies may seek a permanent easement in exchange for a one off payment as this provides them with better security.

Wayleaves, by contrast, are temporary arrangements that include termination clauses, although both electricity and telecoms companies have powers to retain their equipment. Wayleaves tend to be negotiated for 15 or 20 years in exchange for an annual payment.

Although most wayleaves include annual payments, it is possible to negotiate one for a single lump sum at the start of the agreement.

Wayleave payments may also take two forms: the landowner’s payment and the occupier’s payment. The landowner’s payment compensates the landowner for loss of rent and the occupier’s payment compensates the occupier for loss of crop. In the case of an owner occupier, they will get both payments.

As well as receiving a payment in exchange for access to the land, landowners will be compensated if the grantee causes any damage to the land or property on which they have access, such as crop loss, damage to gates, fencing, walls, hedges, or any other equipment or infrastructure on the land belonging to the landowner.

The landowner or occupier will also be compensated for the loss of use of land. If, for example, the grantee needs to use large plant or machinery on the land for an extended period of time, such as erecting new telegraph poles, the occupier might not be able to grazing livestock in the field.

In this case, the occupier will be compensated for loss of use of the land. However, the claimant must mitigate the claim if they can. For example, if the occupier has the choice of buying more forage to feed their cattle or renting a field from a neighbour, the grantee will compensate them for whichever option is cheapest, regardless of what the occupier choses to do.

Does the grantee have to give the grantor notice when they want to come on to their land after a wayleave has been agreed?

This will be covered by the wayleave agreement but usually the answer is no. However, they do normally make contact if they can, especially as most of the work is often planned in a long time in advance. If the works are emergency works then they will enter the land unannounced to identify and fix the problem.

Wayleaves are temporary agreements and the length of the contracted time will be set out in the agreement. Once this time has elapsed, the landowner is entitled to remove the right of access to the grantee.

However, as much of the infrastructure governed by wayleaves is vital to the provision of power or communications services, the grantee has grounds to apply to retain the infrastructure, in the case of an electricity company to the Secretary of State for Business, Energy and Industrial Strategy (BEIS), or via the courts for telecoms.

There are other things to consider when thinking about terminating a wayleave. Firstly, it is likely that the infrastructure crossing your land is providing a vital service to a rural community and terminating it will lead to a loss of service, which might cause reputational issues.

What is more, if the cables supply your premises, you might even disconnect your own electrical or telecoms provision, which may be very costly to reconnect.

When negotiating a wayleave, it is important to consider if you can foresee a time when you may need to have the cabling or poles moved, and either negotiate a better route or provisions to move it in the future. This might be because of a change of use of the land or get planning consent for development.

Omitting to write this into the wayleave will mean that should you want the asset moved, you will have to fund it yourself and may have to wait for the end of your wayleave agreement. Clearly, digging up and re-laying cables, relocating a series of telegraph poles, or moving any other major infrastructure is going to be expensive.

It might be worth paying to have this done if your intention is to apply for planning permission for lots of new houses on your land, but if you only want to put up a new cow shed, it’s going to be prohibitively costly. So, ensure a provision to move the asset is included in the wayleave agreement.

As with moving the asset, any changes the landowner requests to the asset are expected to be funded by the landowner, not the asset owner. This might include actions such as burying cables after they’ve been laid because they make working the land more challenging.

To avoid this, ensure you know everything about the type of asset the grantee wants to install on your land before agreeing the wayleave and carefully consider all the pros and cons of this before signing.

Ask yourself questions such as how the asset will impact on your personal and professional life, in 10 years’ time will I want to do something different with that land, will it affect the value of the land, can I still carry out all farming activities, and do I mind seeing the asset or does it need to be hidden?

When you’ve answered those questions, you’ll be in a position to negotiate changes to a wayleave document to make it more applicable to what you can live with, of course bearing in mind that both telecoms and electrical companies can resort to their compulsory powers in the absence of an agreement.

For more information about wayleaves, easement agreements, or any other right of access issues, speak to your local CLA representative, or get in touch.