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Wayleave Information for Solicitors

Do you advise Clients about electricity wayleaves?

The 1989 Electricity Act materially widened statutory powers enjoyed by Regional Electricity Companies or DNOs (Distribution Network Operators) to retain apparatus across property of all descriptions.

  • No matter how carefully worded the terms of a 'terminable' electricity wayleave are, there is no opt out of statutory protection within the EA 1989, as there can be in a Lease, for example, under Part II of the Landlord and Tenant Act 1954. It is not possible to incorporate a break clause into a terminable electricity wayleave agreement in order to avoid provision contained within the EA 1989.
  • The Secretary of State for Trade and Industry has on past occasion deemed that an electricity wayleave need not be in writing; an implied electricity wayleave can be created by the action of the parties; for example, the acceptance, by a landowner of a nominal wayleave payment offered by an electricity distribution company.
  • One eminent QC within the field of compulsory purchase and compensation has commented that there is now doubt surrounding injurious affection within the Electricity Supply Industry.
  • There is a dearth of case law relating to wayleaves.
  • One owner was ordered to pay legal costs, including those of the Secretary of State for Trade and Industry, following a hearing.

Owners need to be aware that any terminable electricity wayleave they complete can be retained to encumber their property now or at any time in the future.

Clients need to consider that the 1989 Act widened powers enjoyed by Regional Electricity Companies to retain terminable wayleaves affecting property of ALL descriptions - and that ostensible termination clauses belie those wider powers.

Owners can take steps to avoid the unnecessary pitfalls - but this must be done before signing the wayleave agreement.

Contact when we shall be able to advise how we can assist.