CLA East blog: Wayleaves and easments

There are many infrastructure projects underway or planned for the East of England, with energy and telecommunication update schemes among those commonly raised with us by our members.

As many of these projects are routed across private land, developer or Distribution Network Operators (DNO) must ensure they are able to gain access to the land to build the network, carry out routine works and emergency maintenance.

In many cases these are granted via a wayleave agreement, however more frequently a developer or DNO will seek to formalise the agreement in the form of an easement. Although wayleaves and easements are frequently talked about in the same context, there are some fundamental differences members should be aware of before agreeing to either of these documents.

What is a wayleave or easement?

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.

An easement is a legal right that allows one party to use another’s land for a specific purpose and they are often referred to as a deed of grant. Typically they relate to the granting of permanent statutory access, installation and maintenance of equipment installed underneath the land, but this can be extended to large scale overhead line equipment as well.

What are the key differences?

Permanence

· An easement is permanent and is tied to land not the owner. Meaning it will transfer with sale or change in ownership. Private easements are registered with HM Land Registry on the title deed. Easements made under a utility companies statutory powers are not typically registered, but they are still permanent.

· A wayleave is not as permanent and does not transfer automatically with change in ownership of the land. Agreements tend to be for 15 – 20 year periods, rather than in perpetuity

Modification / Termination

· A private easement can only be modified via a new legal agreement or a court ruling. An easement made via statutory powers can only be modified under the relevant utility legislation.

· A wayleave agreement can be terminated under the certain clauses contained within the agreement, as well as being possible to renegotiate terms.

Compensation

· Easements are usually compensated with a one off payment.

· Wayleaves are typically an annual payment.

The CLA website has several useful articles and guidance notes on electricity and telecommunication infrastructure matters. Check out the links below for more information.

Hosting the grid: what landowners need to know about the new Electricity Code of Practice • CLA

In Focus: Compulsory purchase – how it works • CLA

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

If you require advise in relation to any infrastructure projects affecting you, please get in touch with the CLA East team on 01638 590429 or via email at east@cla.org.uk