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About

A Wayleave Agreement is a legal document that allows a third party to use a landowner's land for a specific purpose. This is usually for the construction of a public road or railway. Solicitors can ensure that the agreement is fair and legally binding.Next steps

How much does a Wayleave Agreement cost?

The cost for a licensed solicitor to help with a Wayleave Agreement is dependent on many factors including the complexity and specific requirements of the case. On average it is expected to range from £400-£500 but in some cases it could cost as much as £650.

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Have you ever looked out of your window and considered how pylons or electrical poles and cables are allowed to be put in place where they are? Or are you a landowner that has been approached by a company wanting to use your land for this very thing?

wayleave-agreement

Unlocking the potential of land for electrical infrastructure or telecommunications purposes often involves navigating the legal landscape of wayleave agreements for both the landowners and the providers.

In this article, we take a good look at wayleave agreements, exploring the details of these legal arrangements, shedding light on their purpose, key components, and the considerations that both landowners and companies must bear in mind when entering into such agreements.

We cover:

What is a wayleave agreement?

A wayleave agreement, sometimes known as an access agreement, is a legal agreement between a landowner and a utility company or network provider that grants the company the right to access, install, inspect, repair, and maintain their infrastructure on or under the landowner's property. 

The infrastructure typically includes poles, cables, wires, pipelines, pylons, ducts or other equipment necessary. The agreement gives the grantee a right of access across the land to install or maintain this equipment or infrastructure. 

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

Wayleave agreements are temporary arrangements that do include termination clauses, although both electricity and telecoms companies have legal powers to retain their equipment. Wayleave agreements are commonly negotiated for 15 or 20 years in exchange for an annual payment.

Where large infrastructure schemes are involved, companies might seek a permanent easement in exchange for a one off payment as this provides them with better security.

If you are a landowner, you should carefully review the terms of a wayleave agreement and should seek legal advice before entering into such arrangements to ensure fair compensation and to understand the implications of granting access to your land.

What are wayleave agreements commonly used for?

Wayleave agreements are commonly used in various sectors to enable the installation, maintenance, and operation of electrical or telecommunications infrastructure on private land. 

Some of the most common uses include:

Telecommunications

Wayleave agreements are frequently used by telecommunications companies to install and maintain cables and equipment for telephone lines, broadband, and other communication services. This includes the laying of fiber-optic cables for high-speed internet access. 

Electricity Distribution

Utility companies involved in the distribution of electricity may use wayleave agreements to install and maintain power cables, transformers, and other necessary infrastructure on private land.

Data Centers

Companies operating data centers may seek wayleave agreements to lay cables and install equipment necessary for data transmission and connectivity.

What is included in a wayleave agreement?

A wayleave agreement is the legal document that outlines the rights and obligations of both the landowner and the utility or network provider. The specific terms included in a wayleave agreement can vary based on the nature of the infrastructure involved and the negotiations between the parties. 

An effective agreement will be: completed in writing; record the terms agreed between the parties; ensure the rights and interests of all parties are protected for the duration of the agreement; include a mechanism to prevent and resolve disputes or misunderstandings.

The common elements typically found in a wayleave agreement include:

  • Grant of Rights: Specifies the rights granted to the company, such as the right to enter the land, install, inspect, repair, and maintain the specified infrastructure.

  • Duration: Defines the duration or term of the agreement, outlining the period during which the utility company has the right to access and use the land for its purposes.

  • Scope of Use: Describes the specific purposes for which the land can be used, such as the installation of cables, pipelines, or other equipment for utilities like electricity, gas, water, telecommunications, or broadband.

  • Compensation: Details the compensation payable to the landowner for granting the rights. This may include an initial payment, periodic payments, or a combination of both. Compensation terms are subject to negotiation and may vary based on factors such as the type of infrastructure, the extent of land used, and the impact on the landowner.

  • Rights and Obligations: Clearly outlines the responsibilities and obligations of both parties. This includes the obligations of the company regarding installation, maintenance, repair, and any restoration of the land after the agreement ends.

  • Access Rights: Specifies the access rights of the company, including the right to enter the land at reasonable times and for specified purposes.

  • Termination: Outlines the conditions under which the agreement can be terminated, including any notice periods. This could include the expiration of the agreed term, breach of terms, or other specified conditions.

  • Alterations and Upgrades: Addresses whether the company has the right to make alterations or upgrades to the infrastructure over time and any conditions or limitations associated with such changes.

  • Insurance: Specifies the insurance obligations of both parties, including whether the company is required to carry insurance to cover any liabilities arising from its activities on the land.

  • Indemnity: Includes provisions for indemnity, outlining responsibilities for covering any losses, damages, or liabilities incurred by either party as a result of the agreement.

  • Dispute Resolution: May include provisions for resolving disputes, such as through mediation or arbitration, before resorting to legal action.

The Electronic Communications Code Of Practice provided by Ofcom may be useful when negotiating an agreement granting Code rights. There are also a wide variety of templates and toolkits available on the Government website. 

How do you arrange a wayleave agreement?

Arranging a wayleave agreement involves a series of steps that typically includes communication, negotiation, and formal documentation. 

First, the utility company will identify the need for access to private land to install or maintain their infrastructure.

The utility company will then initiate contact with the landowner to discuss the proposed wayleave agreement. This may involve sending a letter or making direct contact to express their interest and outline the purpose of the access needed.

You should then expect negotiations to take place between the utility company and the landowner. This could include discussions about the specific requirements, the duration of access, the scope of the work, and the compensation to be paid to the landowner.

In some cases, the utility company may conduct a site survey to assess the specific conditions of the land and the feasibility of the proposed installation. This information helps in refining the terms of the agreement.

Once the key terms are agreed upon, a formal wayleave agreement is drafted. Legal professionals are often involved in drafting the agreement to ensure clarity and compliance with legal requirements. Both parties will review the drafted wayleave agreement, and further negotiations may occur to address any outstanding issues. 

It is common for both the utility company and the landowner to seek legal advice before finalising the agreement. Legal professionals can provide guidance on the implications of the agreement and ensure that the interests of both parties are adequately protected.

Once the final version of the wayleave agreement is agreed upon, both parties sign the document. Signatures may need to be witnessed or notarised, depending on the legal requirements.

In some cases, the wayleave agreement may be registered with the Land Registry. This provides public notice of the agreement and can be important for future property transactions.

With the wayleave agreement in place, the utility company can proceed with the installation, maintenance, or other specified activities on the land, and the landowner receives the agreed-upon compensation.

How long does a wayleave agreement take? 

The duration of obtaining a wayleave agreement can vary based on several factors, however typically it can take between 12-16 weeks for the legal documentation to be granted. 

The time it takes can alter depending on the complexity of the agreement, the responsiveness of the parties involved, and any potential challenges or negotiations that arise during the process.

For example, if a site survey is required to assess the conditions of the land, it adds an additional step to the process. The time required for a survey depends on factors such as the size of the area, accessibility, and the nature of the infrastructure being installed.

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How much can landowners earn from wayleave agreements?

The amount landowners can earn from wayleave agreements varies widely and depends on several factors. The compensation paid to landowners for granting access to their land for utility infrastructure installation or maintenance is negotiable and can be influenced by different factors.

wayleave-agreement-1

Most wayleave agreements include annual payments, however it is possible to negotiate for a single lump sum at the start of the agreement instead. 

Wayleave payments could 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 an example, the potential payment levels guide below is for telecommunications infrastructure. The payment value is dependent upon how visible and how close an electricity company’s apparatus is to a property. 

Type of Infrastructure

Payment Value

Single Electrical Pole

Up to 2.5% of property value

(Typically in the range of £3000 to over £20,000)

Twin Electrical Pole

Up to 3.5% of property value

(Typically in the range of £4000 to over £30,000)

2 or 3 Electrical Lines

Up to 2% of property value

(Typically in the range of £3000 to over £20,000)

6, 12, 18 or 24 Power Lines

Up to 5% of property value

(Typically in the range of £8000 to over £30,000)

Pylon 

Up to 15% of property value

(Typically in the range of £15,000 to over £50,000)

Here, you can find a guide on Occupier’s Guidance Wayleave Rates for 2022-23 according to the Energy Network Association, produced by The Anderson Centre. 

What are statutory wayleave agreements?

A statutory or necessary wayleave agreement allows and grants the provider rights to install, inspect, repair, and maintain their infrastructure on private land without the landowner's explicit consent. Unlike voluntary or contractual wayleave agreements, statutory wayleave agreements are governed by specific legislation, providing the company with a legal right to access the land for the specified purposes.

Companies must adhere to the Electricity Act 1989 and the Telecommunications Act 1984, both of which include considerations of public interest, emphasising the importance of the infrastructure to the public or the national interest. This may be a factor in granting the statutory wayleave.

Most companies will try to negotiate a Voluntary Wayleave, however if an agreement is not met, providers can often proceed with the install under the Code Power Operating Licence and impose Compulsory Purchase or Vesting Orders.

Wayleaves vs Easements: key differences

Wayleaves and easements both involve granting rights over someone else's land for specific purposes. While there are similarities, there are also key differences between wayleaves and easements.

Wayleaves 

Easements

Nature of rights

A wayleave is a temporary and revocable right granted to a utility company or service provider to use the land for a specific purpose, such as installing and maintaining infrastructure. It does not create a permanent interest in the land.

A legal right that allows one party (the beneficiary) certain rights over the land of another party (the servient land). Easements can be affirmative (allowing certain actions) or negative (preventing certain actions).

Duration

Wayleaves are often granted for a specified period, and the rights granted may come to an end when the agreed-upon term expires. They are typically used for shorter-term arrangements.

Generally considered more permanent than wayleaves. They can exist indefinitely and may pass with the property to subsequent owners.

Easements are often transferable with the land, meaning that the rights and obligations associated with the easement continue when the property changes hands.

Termination

The landowner can generally revoke or terminate a wayleave, subject to any agreed-upon notice periods or compensation requirements.

Generally more permanent, however they can be terminated under specific circumstances, such as abandonment, agreement between the parties, or changes in law.

Compensation

Compensation for granting a wayleave is typically negotiable between the parties. The amount may be determined based on factors such as the impact on the land, the duration of the agreement, and any disruption caused.

The creation of certain types of easements does not typically involve direct compensation to the landowner. Compensation may be awarded in cases of compulsory acquisition or significant interference with the land.

How to terminate a wayleave agreement

When a landowner wishes to terminate a wayleave agreement, they must give a minimum notice of 18 months to the operators to terminate under the Electronic Communications Code. You must also do this even where the contractual term has expired. 

On giving notice, the landowner might need to issue a separate notice to terminate the wayleave and also for the statutory grounds for removal.

Statutory grounds for removal:

Even upon termination of the agreement, the landowner does not possess the right to remove the equipment. Instead, an additional process must be taken to request the operator's removal of the apparatus. 

A landowner is only permitted to request removal or termination on the following statutory grounds:

  • Substantial breach of the wayleave agreement by the operator.

  • Delays or non-payment by the operator in adherence to the agreement.

  • If the landowner intends to develop the land and cannot reasonably do so without terminating the wayleave.

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