Heat Networks (Scotland) Act 2021

Other powers over land

78 Power to carry out survey

(1) A licence holder may carry out a survey of land for the purpose of determining whether the land is suitable for a purpose connected with the construction or operation of a heat network.

(2) Before carrying out a survey of land under subsection (1), the licence holder must give the occupier of the land at least 14 days’ notice of the intention to carry out the survey.

(3) If subsection (4) applies, a right to carry out a survey of any land under subsection (1) includes the right to search and bore the land for the purposes of ascertaining—

(a) the nature of the subsoil of the land,

(b) the presence of minerals or other matter in the land.

(4) This subsection applies if notice given under subsection (2) includes notice of the intention to carry out the work mentioned in subsection (3).

(5) A person carrying out a survey of land under subsection (1) has a right of entry to the land at all reasonable times to carry out the survey but must—

(a) when seeking to enter the land in order to carry out the survey, provide evidence of the person’s authority to so act on request by an occupier or the owner of the land,

(b) carry out the survey in a manner that ensures as little disruption as possible is caused to any occupier or owner of the land,

(c) endeavour—

(i) to ensure that as little damage as possible is caused by the exercise of the person’s powers under this section, and

(ii) if any damage is caused, take reasonable steps to remedy the damage.

(6) A person commits an offence if the person, without reasonable excuse, intentionally obstructs another person (a “relevant person”) in the exercise of the relevant person’s power to enter upon and survey the land under this section.

(7) A person who commits an offence under subsection (6) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

79 Power to enter land to replace or repair apparatus

(1) A licence holder may exercise a network land right for a purpose connected with the supply of thermal energy by means of a heat network by the licence holder.

(2) In this Part, a “network land right” is a power—

(a) to install heat network apparatus in replacement for, or in addition to, existing heat network apparatus that is lawfully situated in land,

(b) to inspect, maintain, adjust, alter, repair, replace, upgrade, operate, remove or add to any existing heat network apparatus that is situated in land,

(c) to carry out any works to the land that are necessary for or incidental to the powers mentioned in paragraph (a) or (b).

(3) The works mentioned in subsection (2)(c) include felling, lopping or cutting back the roots of any tree or shrub on, under or over the land that is in close proximity to heat network apparatus that is, is being or is to be installed by or on behalf of the licence holder, in order to prevent the tree or shrub—

(a) from obstructing or interfering with the installation, maintenance or operation of the heat network apparatus, or

(b) from constituting a danger to persons.

(4) The licence holder must give the owner and any occupier of the land concerned at least 7 days’ notice of the intention by or on behalf of the licence holder to enter onto the land for the purpose of exercising the network land rights specified in the notice.

(5) Subsection (4) does not apply if the network land rights that the licence holder proposes to exercise are to be exercised in order to carry out emergency works.

(6) Where the licence holder exercises a network land right to carry out emergency works, the licence holder must notify the owner and any occupier of the land of the works carried out as soon as possible after the carrying out of those works.

(7) A person exercising a network land right in relation to any land has a right of entry to the land at all reasonable times to exercise the network land right but must—

(a) when seeking to enter the land in order to exercise a network land right, provide evidence of the person’s authority to so act on request by an owner or (as the case may be) an occupier of the land,

(b) exercise the network land right in a manner that ensures as little disruption as possible is caused to the owner and any occupier of the land,

(c) endeavour—

(i) to ensure that as little damage as possible is caused by the exercise of the person’s powers under this section, and

(ii) if any damage is caused, take reasonable steps to remedy the damage.

(8) A person commits an offence if that person, without reasonable excuse, intentionally obstructs another person (a “relevant person”) in the exercise of the relevant person’s power to enter upon the land and exercise a network land right under this section.

(9) A person who commits an offence under subsection (8) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(10) In this section, “emergency works” means works carried out by virtue of a network land right for the purpose of—

(a) stopping anything already occurring, or

(b) preventing anything imminent from occurring that is likely to cause—

(i) danger to persons or property,

(ii) the interruption of any supply provided by the licence holder,

and any other works that are reasonable (in all circumstances) to carry out with those works.

80 Restrictions on powers of licence holders

(1) This section applies where—

(a) land is occupied by a statutory undertaker and the carrying out of a survey of the land under section 78(1) is likely to obstruct or interfere with the statutory undertaker’s undertaking, or

(b) land is occupied by a statutory undertaker and the exercise of a network land right in relation to the land under section 79(1) is likely to obstruct or interfere with the statutory undertaker’s undertaking.

(2) Where this section applies, a licence holder may exercise the power mentioned in section 78(1) or 79(1) only with the consent of the statutory undertaker concerned.

(3) But consent is not required under subsection (2) if it is withheld unreasonably by the statutory undertaker.

(4) It is for the Scottish Ministers to determine any question which arises as to whether consent has been withheld unreasonably for the purposes of subsection (3), and their decision is final.

(5) In this section—

• “statutory undertaker” means—

  (a)

  the holder of a licence under section 6(1) of the Electricity Act 1989,

  (b)

  a gas transporter within the meaning of Part 1 of the Gas Act 1986,

  (c)

  the Civil Aviation Authority,

  (d)

  a holder of a licence under Chapter 1 of the Transport Act 2000,

  (e)

  the operator of an electronic communications code network within the meaning of paragraph 1(1) of schedule 17 of the Communications Act 2003,

  (f)

  any other person who is a statutory undertaker within the meaning of section 214(1) of the Town and Country Planning (Scotland) Act 1997,

• “undertaking”—

  (a)

  means, in relation to a person mentioned in paragraphs (a) to (e) in the definition of “statutory undertaker”, the person’s undertaking,

  (b)

  means, in relation to Scottish Water, its core functions within the meaning of section 70(2) of the Water Industry (Scotland) Act 2002,

  (c)

  otherwise has the meaning given in the Town and Country Planning (Scotland) Act 1997.

81 Compensation for damage or disturbance

(1) Where the exercise of a power under section 78(1) or 79(1) by or on behalf of a licence holder in relation to land—

(a) causes damage to the land or a thing situated on the land, the licence holder is liable to pay compensation to a person with an interest in or over the land or the thing,

(b) disturbs a person’s enjoyment of the land or a thing situated on the land, the licence holder is liable to pay compensation to the person in respect of the disturbance.

(2) Any dispute about compensation under this section is to be referred to and determined by the Lands Tribunal for Scotland.

(3) Sections 9 and 11 of the Land Compensation (Scotland) Act 1963 apply in relation to any determination under subsection (2) as if—

(a) this section were referred to in section 9(1) of that Act, and

(b) references in section 11 of that Act to the acquiring authority were references to the licence holder concerned.

(4) The Scottish Ministers may by regulations make further provision about compensation payable under this section.