An owner of land on which electricity pylons have been installed by another party is not entitled to receive a payout for any period when the apparatus was on the land before the date of the grant of the necessary wayleave, a judge has ruled.
Lord Glennie in the Court of Session refused a petition by William Tracey Limited, the owner and occupier of a major waste management and recycling facility in Linwood, which argued that it should be awarded compensation for the period when the overhead power line, tower and associated apparatus was on its land prior to the date of the grant to the licence holder under the Electricity Act 1989.
The court heard that the apparatus was already in situ when the Linwood site was purchased by the William Tracey Private Pension Fund in 1998.
There had been a wayleave agreement in place between the owner of the site and Scottish Power plc, the then owner, operator and licence holder of the apparatus, but that express wayleave agreement came to an end on the acquisition of the site by the pension fund and its occupation by the petitioner.
During the course of 2005 and subsequently, SP Transmission PLC (SPT), which succeeded to the responsibilities of Scottish Power plc, requested a wayleave from the petitioner for the pylon to remain in place, but that request was declined as the petitioner’s preference was for the pylon to be removed.
Following protracted discussions between the parties, agents for the petitioner wrote to SPT on 8 December 2010 seeking the removal of the apparatus from the site within three months, which amounted to a formal “notice of removal”.
However, in March 2011 SPT applied to Scottish Ministers for a necessary wayleave and a reporter was appointed.
After sundry drawn out procedure, during the course of which the process was sisted for significant periods, following a hearing the reporter submitted his report to Scottish Ministers in April 2014, and the ministers granted the necessary wayleave on 13 August 2014.
Ministers specified that the wayleave was to be in force from the date it was signed because “there is nothing in Schedule 4 to the 1989 Act which would allow them to grant a wayleave which had effect from a date earlier than the date of their decision”.
The wayleave entitled the petitioner, as occupier and owner of the land, to compensation in respect of that grant, in the form of a lump sum or by periodical payments, but the Act says nothing about any entitlement to compensation for any period prior to the grant of the necessary wayleave.
The petitioner argued that it should be awarded as from the date of its own notice to remove served on 8 December 2010 or, at latest, from the date of SPT’s application for a necessary wayleave made on 3 March 2011.
However, SPT argued that compensation should be awarded only from the date the necessary wayleave was granted and signed.
Refusing the petition, the judge observed that the 1989 Act set out a statutory regime regulating the respective rights and interests of landowners, occupiers and licence holders all in the general interest of the public.
“Those interests are served by the provision of an uninterrupted supply of electricity. To that end section 9(2) of the Act places a duty on a licence holder, similar to that placed on an electricity distributor, ‘to develop and maintain an efficient, co-ordinated and economical system of electricity transmission”, Lord Glennie explained.
He continued: “To achieve that aim it is necessary that a licence holder is able to obtain rights enabling it to construct or keep in existence power lines and related apparatus over, under and on land belonging to others… The grant of a wayleave, however, involves no outright acquisition of land, compulsory or otherwise, and therefore schedule 4 makes bespoke provision for compensation. That provision is contained within paragraph 7 of schedule 4.”
But it was clear on the “plain meaning” of the words used that paragraph 7(1) makes provision for the owner or occupier of the land to be compensated “only when a wayleave is granted” and that he may only recover compensation “in respect of the grant”.
The petitioner’s argument was an attempt to achieve the result that the owner or occupier of the land is entitled to compensation from a date prior to the grant of a necessary wayleave.
In a written opinion, Lord Glennie said: “The point is novel, though none the worse for that. But it seems to me that it must fail, essentially for the same reasons as arguments advanced by owners and occupiers of land have failed in previous cases. The provision for compensation is contained within paragraph 7 of schedule 4. That specifically provides that compensation may be recovered in respect of the grant where a necessary wayleave is granted. It does not, as I have already noted, make any allowance for recovery of compensation other than in respect of the grant.”
The judge also rejected the petitioner’s argument based on Article 1 of the First Protocol to the European Convention on Human Rights (A1P1), after ruling that the claim that the “interference” with the petitioner’s peaceful enjoyment of the land without compensation for considerable periods was “somewhat exaggerated”.
He said: “There is a statutory scheme for compensation which is appropriate in most, if not all, reasonably foreseeable circumstances. I therefore reject the argument based on A1P1.”
The judge further rejected an argument based on “discrimination”, contrary to Article 14 of the European Convention.
Lord Glennie said: “It does not seem to me that the situation of an owner or occupier of land before the grant of a necessary wayleave gives him any particular status as compared with that which he and others enjoy after the necessary wayleave has been granted.”