Access and Rights

Question 1

What is a wayleave?

Answer 1

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

Wayleave Agreements are made with landowners and are not registered against the land title.

Question 2

What is a servitude?

Answer 2

Deeds of Servitude provide increased security for equipment, as we acquire permanent rights to the land. This minimises any future problems with the location of equipment.

The deed associated with this form of consent is registered with the Land Register and cannot be terminated.

Question 3

Water act

Answer 3

The Water (Scotland) Act 1980

Question 4

Electricity act

Answer 4

The Electricity Act 1989

Question 5

Which section of the electricity act holds the statutory consents?

Answer 5

Section 37 Electricity Act 1989

Section 37 application is a two part process involving an initial application to the local planning authority followed by an application to the appropriate Ministry:-
Scotland - Scottish Government Energy Consent Unit

Question 6

Does a section 37 Electricity Act 1989 apply to underground cables?

Answer 6

No

Question 7

What is a necessary wayleave?

Answer 7

Necessary wayleaves are statutory rights that allow the installation and retention of electric lines and associated equipment on private land. These rights do not require the landowner’s agreement and can be granted to statutory undertakers.

Question 8

What are the 4 main land rights?

Answer 8

1. Freehold/Deposition
2. Lease
3. Servitude
4. Wayleave

Question 9

Give an example where you had difficulty with access rights

Answer 9

where there is no wayleave or servitude

Question 10

Do renewable developers also benefit from these rights if they are needing access to connect to the grid for example?

Answer 10

No

Question 11

If access has been granted for a temporary access track to be built across your clients land, what would be the process of this?

Answer 11

rental figures, how long its going to be there, where on your land, what is it for

Question 12

You receive a call from a agricultural tenant, they’re angry at your client as they have a footpath that passes one of their grazing fields and people keep cutting through their field as a short cut. Is there anything you can do here?

Answer 12

appropriate signage, Scottish Outdoor Access Code under the reform 2003 act as long as its responsible

Question 13

What is SOAC?

Answer 13

Scottish Outdoor Access Code

Question 14

What’s land referencing?
Why do you need to do that?

Answer 14

Determines land ownership

Question 15

What rights do the general public have it terms to access to land owned by private individuals?

Answer 15

They have the right to roam, have responsible access on foot

Question 16

Can you explain what rights Scottish Water has to improve their infrastructure?

Answer 16

S.16 notices are for surveying the land and is a 14 day notice. 16(1) and 16(2) is 14 day notice, then 16(5) is a 24hr notice, this is sent once the Scot Gov have authorised.

S.23(1)(b) notice to lay new water apparatus is a 2 month notice - can object

38(1)(c) notice is a 24 hour notice for surveys

38(1)(d) notice is 24 hours, notice of entry for renewal works - can not object

Question 17

What’s the difference between a servitude and wayleave?

Answer 17

Wayleave lies with the landowner, whereas a servitude is tied to the land and is perpetuity.

Question 18

Why would you want a wayleave instead of a servitude?

Answer 18

More security

Question 19

What’s a ransom strip?

Answer 19

Being ‘ransomed’ in development terms relates to a piece of adjoining land in separate ownership that is required for access to development land.

Question 20

Under what legislation does a developer have to apply to construct, extend and operate an onshore electricity generating station exceeding 50MW?

Answer 20

Section 36 of the Electricity (Scotland) Act 1989

Question 21

Who determines the outcome of section 36 applications?

Answer 21

Scottish Ministers

Question 22

What’s a heads of terms?

Answer 22

Agreement between landowner and an interested party

Question 23

What’s the difference between an option agreement and a lease?

Answer 23

option agreement – can carry out tests and investigations, and then can go into lease

Question 24

What is oversail and overrun?

Answer 24

Oversail - blades crossing land using the airspace and not physically touching the ground
Overrun - the wheels of the lorry physically touches the ground and tracks need to be put in place