Whether you’re in Turriff or Tealing, it’s hard to avoid hearing or indeed seeing the various electricity projects springing up across the Northeast. For some, they are a positive development - for others, a source of concern.
Indeed, over the last 12 months we have seen an increase in clients getting in touch having found themselves with property within the proposed pylon corridors or red line development boundaries.
“Can they build these pylons on my land?”
“Can they just turn up and start works?”
“How will this affect the value of my farm?”
These are just some of the questions we’ve been asked, and for many clients it can sometimes feel like a David v Goliath-type scenario.
So, how can landowners or tenants on land that falls within an affected site make sure they’re able to work constructively with a utility company who needs access to the land for a new substation or energy storage facility?
Anyone finding themselves in this position should prepare at an early stage for an approach by a land manager from the company involved in the development.
This initial approach is ordinarily to agree access by the utility company for its contractors to carry out surveys on the land. These surveys can cover everything from water and noise sampling through to ecological reporting and are a necessary part of the utility companies finalising their preferred sites and obtaining planning permission.
Under the Electricity Act 1989, utility companies do have statutory rights of access that can be exercised where necessary. However, exercise of these powers is typically a last resort, with a voluntary agreement being the preferred approach.
Voluntary agreement can take the form of regular one-off verbal requests for access or, more commonly, a request for the landowner to enter into a lease or licence type agreement, which allows the utility company to take regular access for surveys over a fixed period of time. These agreements ordinarily provide for the legal fees of the landowner to be paid by the utility company.
It is important that landowner or tenant takes up that part of the agreement and seek advice before entering into these agreements given the impact the utility company’s use of the land could have on the owner or tenant’s liability, not just in respect of injury to those on the land but also environmental harm and damage to habitats.
Following completion of site investigations, the utility company may make a further approach. This one will have a greater impact on the landowner or tenant as it is normally seeking to either (1) agree a wayleave or servitude right to run cables above or below the land or (2) to purchase land for the purpose of pylon or substation construction.
As with access for surveys, utility companies will seek to agree these rights on a voluntary basis before invoking statutory powers by way of compulsory purchase orders or necessary wayleave.
In their bid to agree the purchase of land or the obtaining of rights over land, the utility company will typically make a compensation payment to the landowner or tenant. Depending on the size of the site affected this can be a sizeable sum of money. And while they have overarching statutory powers this does not mean there is no scope for negotiation. What’s key is to seek professional advice before entering into these agreements, so you can best protect your position.
Compensation to be paid by the utility company in return for obtaining the rights is one of the principal matters for negotiation.
Throughout the process the landowner or tenant has the right to seek their own valuation advice and this is something we would always recommend anyone affected to explore.
It’s not uncommon for the initial compensation figure offered to be discussed and even changed once professional valuation advice has been sought.
Where the compensation cannot be agreed between parties then matters can be referred to the Lands Tribunal for Scotland, who have the power to decide how much compensation the utility company should pay.
Remember that where the Tribunal needs to adjudicate on compensation, this sits separate from the granting of rights. This means that the utility company can still obtain rights over your land using their statutory powers, whilst leaving the Tribunal to determine the matter of compensation at a later juncture.
Infrastructure developments are only likely to increase in the months and years ahead, especially as the transition to renewable energy continues apace.
Our main message to anyone who’s affected is to reiterate that you have a right to seek advice before entering into any agreement. Taking the time to do so will help protect your interests in the longer term.
