|
Senior Agriculture and Rural Land Solicitor Wayleave agreements
Wayleave agreements are essential in the infrastructure sector, especially for utility companies. They allow the installation of pipes, cables, and even pylons on private land, typically for electricity, water, and telecommunications. However, their limitations compared to easements mean they are more susceptible to legal challenges.
Wayleave agreements vs easements
A wayleave agreement is a contract between a landowner or occupier of a piece of land (the grantor) and a third party (the grantee), giving the grantee permission to install and maintain equipment on the grantor’s property. In return, the grantor receives financial compensation as specified in the agreement.
Typically, wayleave agreements are temporary, terminable by either party with notice. As a result, they are less secure for long-term infrastructure projects than a grantee might prefer. They operate as ‘consents’ and do not give the grantee an interest in the land, nor are they registrable at the Land Registry.
In contrast, easements are property rights allowing the land’s use for a specific purpose, such as installing pipes or cables, but, crucially, they bind future owners. Most easements are registered at the Land Registry and generally provide long-term security.
Problems with Wayleave Agreements
- Temporary nature. Their transient status creates uncertainty, as the grantee’s equipment is vulnerable to removal if the grantor revokes the agreement. If this occurs, the utility company faces significant relocation costs for their equipment.
- Enforceability. Wayleaves are personal between the grantor and the grantee. Therefore, they do not automatically transfer to new landowners, requiring the grantee to renegotiate the wayleave agreement. Conversely, easements are tied to the land and bind subsequent landowners.
- Compensation Disputes. Determining fair financial compensation for wayleave agreements can be challenging, unlike with easements, where compensation is typically calculated based on the long-term impact on the land’s value. Disputes over wayleave compensation are not uncommon, especially when the project is extensive or significantly affects the property’s use or value.
- Land development conflicts. Wayleave agreements can often complicate development plans. Their transient nature means developers may seek to remove the infrastructure to facilitate development. That is far less likely with easements.
Legal considerations
Understandably, utility companies favour the certainty of easements for longer-term infrastructure projects.
There is significant debate over whether the wayleave framework requires reform to offer greater protection, akin to easements. Implementing such reforms would provide greater certainty and reduce disputes. However, these reforms would impose additional burdens on landowners, potentially increasing resistance to granting any form of access to their land.
Comment
Wayleave agreements are beneficial for granting temporary access for infrastructure. However, they also present challenges due to their:
- temporary nature;
- problems with enforceability; and
- potential for disputes to arise.
The contrasting characteristics of wayleaves and easements highlight the importance of careful planning in infrastructure development. Furthermore, the Government’s New Homes Accelerator Programme, combined with growth in telecommunications and the renewable energy sector, results in higher infrastructure demands than ever before. Consequently, resolving issues with wayleave agreements becomes increasingly crucial to ensure projects progress smoothly and with adequate safeguards for all involved.