Wayleave rights
Section 69: Network wayleave right
155.A “network wayleave right” is defined in subsection (1) as the right for a licence holder to convey steam or liquids in land for a purpose connected with the supply of thermal energy by means of a heat network by the licence holder.
156.A “network wayleave right” in respect of land includes a power to install and keep installed heat network apparatus in the land; to enter upon the land to install, inspect, maintain, adjust, alter, repair, replace, upgrade, operate or remove the heat network apparatus; and to carry out any works in respect of the land that are reasonably necessary or incidental to the exercise of the network wayleave right (subsection 2).
157.A network wayleave right in respect of the land may be conferred on a licence holder in four ways: by the owner of the land either by agreement with the licence holder, or unilaterally; by a necessary wayleave; or by positive prescription (subsection (3)).
158.A wayleave document (being a written document conferring a network wayleave right on a licence holder) may include a development condition (subsection 4). This, as defined in subsection (5), is a condition in a wayleave document restricting or regulating the development or use of the land to which the wayleave document relates by a relevant person as may be required to prevent interference with the exercise of the network wayleave right conferred by the wayleave document. A development condition may in particular include a condition either requiring such operations or activities as may be specified in the wayleave document to be carried out on, under or over the land, or requiring the land to be used in such way as may be so specified (subsection (6)).
159.Subsection (7) provides the definition of a “relevant person” that means either the owner or tenant of the land or any other person (other than the licence holder) who has right to use the land.
160.Subsection (8) provides for the creation of a network wayleave right by positive prescription (the process of acquiring rights by the passage of time) if it has been possessed for a continuous period of 20 years openly, peaceably and without judicial interruption. It does so by applying section 3(2) of the Prescription and Limitation (Scotland) Act 1973 (positive servitudes and public rights of way) to a network wayleave right in respect of land as it applies to a positive servitude over land but as if in that subsection a reference to a positive servitude were a reference to a network wayleave right, and a reference to possession of a servitude were a reference to possession by a licence holder of a network wayleave right. Subsection (9) provides that a network wayleave right constitutes a real right. A real right in land is a right directly in the land. A subordinate real right (i.e. a right other than ownership) continues to exist regardless of who owns the land. In other words it is said to ‘run with the land’. It is also enforceable against third parties. This differs from a personal right which is a right against a person only, for example as a result of a contract.
161.Subsection (10) provides that the installation of heat network apparatus in land by a licence holder who exercises that network wayleave right does not confer ownership of the heat network apparatus on the owner of the land.
162.Subsection (11) provides definitions of “heat network apparatus”, “land”, “necessary wayleave”, “owner” and “wayleave document”. Subsection (12) provides that in Part 6 of the Act a reference to heat network apparatus in land includes a reference to heat network apparatus under, over, across, along or on the land.
Section 70: Acquisition of necessary wayleave
163.On an application by a licence holder, the Scottish Ministers may grant a necessary wayleave conferring a network wayleave right on a licence holder if it is considered necessary or expedient for a purpose connected with the supply of thermal energy by means of a heat network by the licence holder (subsection (1)).
164.A necessary wayleave has effect for the period specified in the necessary wayleave and is subject to terms and conditions considered by the Scottish Ministers to be appropriate (subsection (2)).
165.A necessary wayleave may include a development condition (subsection 3) which is defined in subsection (4) by reference to the definition in section 69(5) to (7) with necessary modifications to terminology.
166.A licence holder may apply for a necessary wayleave in respect of land only if either the licence holder has given notice to the owner of the land setting out the licence holder’s request to acquire a network wayleave right (subsection (5)(a)(i)), or where the licence holder cannot ascertain the name or address of the owner of the land after reasonable enquiry, the licence holder has given notice in such form and manner as may be specified by the Scottish Ministers by regulations (subsection (5)(a)(ii)). One of the conditions set out in subsection (6) must apply. In terms of subsection (7) a notice referred in subsection (5)(a)(i) must state the reasons why the conferral of a network wayleave right is sought and specify the period (which is to be not less than 28 days from the date on which the notice is given) within which the owner of the land must agree to enter into or grant a wayleave document.
167.The Scottish Ministers must allow representations to be made by the persons referred to in subsection (8) before granting a necessary wayleave.
168.The power conferred by subsection (1) does not apply in relation to land held (or used by, or on behalf of) a Minister of the Crown or department of the Government of the United Kingdom (subsection (9)).
Section 71: Assignation of network wayleave rights
169.Section 71 provides that a network wayleave right may be assigned by one licence holder to another, but a network wayleave right conferred by a necessary wayleave may only be assigned with the consent of the Scottish Ministers (subsections (1) and (2)).
170.A wayleave document is void to the extent it prevents or limits the assignation of the network wayleave right to another licence holder or makes the assignation of the network wayleave right to another licence holder subject to a condition (including a condition requiring the payment of money) (subsection (3)).
Section 72: Variation of network wayleave right
171.A network wayleave right in respect of land (however conferred) may only be varied either by a “variation agreement” or in accordance with section 72 (subsection 1). A variation agreement is an agreement to vary the network wayleave right between the owner of the land and the licence holder entitled to the benefit of the network wayleave right.
172.A licence holder may apply to the Scottish Ministers to vary a network wayleave right in respect of land only if the appropriate notice has been given and one of the conditions in subsection (3) applies. Notice is to be given either by the licence holder giving notice to the owner of the land setting out the licence holder’s request to vary the network wayleave right, or, where the licence holder cannot ascertain the name or address of the owner of the land after reasonable enquiry, the licence holder giving notice in such form and manner as may be specified by the Scottish Ministers by regulations (subsection (2)).
173.Subsection (4) specifies circumstances where the owner of the land may apply to the Scottish Ministers to vary a network wayleave right if the owner has given notice to the licence holder setting out the owner’s request to vary the network wayleave right, and one of the conditions mentioned in subsection (5) applies.
174.Notice to be given by the licence holder under subsection (2)(a)(i) or by the owner of the land under subsection (4)(a) must state the reasons why the variation agreement is proposed, and specify the period (which is to be not less than 28 days from the date on which the notice is given) after which, if agreement is not reached, the person giving the notice may apply to the Scottish Ministers for the grant of a variation (subsection (6)).
175.Subsection (7) specifies that the Scottish Ministers may, following an application by a licence holder entitled to the benefit of a network wayleave right, grant a variation of the network wayleave right if they consider that it is necessary or expedient for the licence holder to exercise the right as varied for a purpose connected with the supply of thermal energy by means of a heat network by the licence holder. In addition, the Scottish Ministers may following an application by the owner of land in respect of which a network wayleave right is exercisable, grant a variation of the network wayleave right if they consider it is appropriate to do so. In considering whether it is appropriate to grant a variation of a network wayleave right in the second circumstance, the Scottish Ministers may in particular consider whether the exercise of the network wayleave right appears to them to materially prejudice the owner’s enjoyment or use of the land, whether any variation would not substantially increase the cost or diminish the quality of the supply provided by the licence holder’s heat network to persons who rely (or may in the future rely) on the supply of thermal energy by means of the heat network concerned, and whether any variation would not result in the licence holder incurring substantial additional expenditure.
176.Before granting a variation of a network wayleave right, the Scottish Ministers must allow an opportunity for representations to be made (subsection (9)). Where an application is made by the licence holder this opportunity must be given to the owner of the land and (if applicable), to a person other than the owner who has not agreed or given consent to the variation. Where an application is made by the owner of the land, the Scottish Ministers must give the licence holder the opportunity to make representations.
Section 73: Compensation on variation of a network wayleave right
177.Where a network wayleave right is varied under section 72(7)(a) so as to place or increase a burden on an occupier of the land, or the owner where the occupier is not also the owner of the land, either or both of those persons may recover from the licence holder compensation in respect of the variation of the network wayleave right (subsection (1)).
178.Any dispute about compensation under section 73 is to be referred to and determined by the Lands Tribunal for Scotland. Subsection (3) sets out how sections of the Land Compensation (Scotland) Act 1963 apply.
179.The Scottish Ministers may by regulations make further provision about compensation payable under this section (subsection 4).
Section 74: Discharge of network wayleave right
180.Subsection (1) provides that a network wayleave right in respect of land (however conferred) may only be discharged by the licence holder entitled to the benefit of the network wayleave right, either by agreement with the owner of the land (subsection (1)(a)), or unilaterally (subsection (1)(b)).
181.Subsection (2) requires that a licence holder must discharge a network wayleave right if (and to the extent that) the right relates to heat network apparatus that has ceased to be used for the purposes of a heat network.
Section 75: Registration of network wayleave rights
182.The Scottish Ministers may by regulations make provision for or about the registration of network wayleave rights. Subsection (2) sets out what regulations may in particular make provision about.
183.Subsection (3) provides that the regulations under section 75 may modify any enactment.
Section 76: Requirement to remove apparatus when notified
184.Subsection (1) specifies the circumstances in which section 76 applies. It applies where a person (the “right holder”) has a right to remove (or require the removal of) any heat network apparatus installed in the land by a licence holder, and the right holder seeks the removal of all or part of the heat network apparatus.
185.In such a case, in order to have the apparatus removed the right holder has to give written notice to the licence holder requesting that the apparatus be removed (subsection (2)). In terms of subsection (3) and (4) the licence holder must comply with the notice given by no later than the period of 3 months beginning on the day notice is given, unless the licence holder applies for the grant of a necessary wayleave or submits a compulsory purchase order for confirmation. If the application for the grant of a necessary wayleave is refused, or the compulsory purchase order is not confirmed, the licence holder must comply with the notice given within 3 months of the Scottish Ministers’ decision (subsection 5).
Section 77: Compensation in connection with network wayleave rights
186.Where a necessary wayleave is granted to a licence holder, the occupier and (where the occupier is not also the owner) the owner may recover compensation from the licence holder in respect of the grant (subsection (1)). Where the exercise of a network wayleave right by or on behalf of a licence holder in relation to land causes damage to the land (or something on the land), or disturbs a person’s enjoyment of the land (subsection (2)), the licence holder is also liable to pay compensation to the person affected.
187.Subsection (3) provides that disputes about compensation are to be referred to and determined by the Lands Tribunal for Scotland. Subsection (4) sets out how sections of the Land Compensation (Scotland) Act 1963 apply.
188.The Scottish Ministers may make further provision about compensation by regulations (subsection (5)).
