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.
