Policy & Lobbying
Wayleaves & Property Rights
Although the law does not define the word “wayleave”, it is a conventional term to describe the arrangement that exist, with rights and obligations, when powers are taken to construct, use and maintain apparatus, such as pipes and cables, in, on or over land. 

Scottish Land & Estates, along with other farming organisations, are continually involved in meetings with the power companies. We aim to encourage good relationships between landowners and the companies to ensure infrastructure improvements can take place while grantor's are treated and compensated fairly.
Scottish Land & Estates have not agreed to recommended rental or compensation rates. These should be negotiated on an individual basis with porfessional assistance where required.

W&PR 09 Broadband Summary

This information sheet provides an overview of broadband policy and options at October 2017. 


Electronic Communications Code, Code of Practice Consultation Response

This consultation response was submitted to Ofcom regarding the Code of Practice for the Electronic Communications Code.


W&PR 08 Electronic Communications Code

This information sheet provides an overview of the revised Electronic Communciations Code which has been introduced by the Digital Economy Act.


Electronic Communications Code Consultation Response

A consultation response was submitted to the DCMS at the end of April regarding the reforming of the Electronic Communications Code. The current code, which came in under the Telecommunications Act 1984, applies to the whole of the UK.

Members with specialist and working knowledge of the Code attended the workshops held in London and Edinburgh before constructing the response. We have supported many of the Law Commission’s recommendations.

We feel the present Code is heavily drafted in favour of the operators and there are a number of defects in the existing Code provisions which potentially infringe landowners’ property rights. We hope the revised Code will address this.

Key contentious issues were:

• The proposed right for operators to assign, upgrade and site-share without additional payment to the landowner runs contrary to the existing established market and is not agreeable. This proposal would also act retrospectively on existing agreements most of which restrict assignment to group companies. We feel it is important for landlords to know who their tenants are particularly in rural areas where access issues may be more sensitive.

• Suggestion that when valuing the level of payment for code rights, the valuer should ignore the right to assign, upgrade or site-share. This is artificial and is contrary to commercial reality. The effect of this is that valuers will be asked to assess the consideration payable for a site on terms which cannot exist in practice because they are not permitted under the Code.  The further a valuation assumption differs from reality the greater the valuation uncertainty.

• The issue of electronic communication equipment being on land currently not following normal property law. If the definition of land excludes electronic communication equipment Code rights cannot be applied to masts etc. and a significant proportion of the market will be excluded from the Code rights.

• The lack of definition of sharing could be used to the operators’ advantage and a definition should be established.


Necessary Wayleaves

Scottish Land & Estates has submitted a detailed response to the government’s draft “Necessary Wayleaves in Scotland: Guidance for Applicants, Landowners and Occupiers” . In it we have generally welcomed the guidance but made a number of recommendations for improvement. The Scottish Government has already confirmed it will incorporate a number of our recommendations in the final guidance.  

SLE welcomed the clarification of recommended timescales in the process and the introduction of a standard set of supporting information when a necessary wayleave application is made, which would include evidence of discussion with the landowner/occupier by the operator.  We have concerns about the recommended period for a necessary wayleave being increased to 40 years. If this duration was sought it would need to be carefully justified particularly where land has development potential and where a servitude could already be acquired under compulsory powers.

Thanks to the wayleave sub-group and in particular Brodies LLP for their assistance in preparing the SLE response.

The Draft guidance can be found at:  http://www.scotland.gov.uk/Topics/Business-Industry/Energy/resources/Consultations/DraftWayleaveGuidance2013

To view the SLE Response please click on attachment below.

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