Necessary wayleaves and tree felling or lopping: applying for consent
Guidance for electricity licence holders on obtaining permission from owners and / or occupiers of land in order to legally install an electric line.
Electricity licence holders need to secure permissions from owners and / or occupiers of land in order to legally install an electric line and to keep it installed, together with access to the land in order to inspect, repair and maintain the line when in situ.
Commonly such permissions are secured voluntarily between the landowner and/or occupier and the licence holder. However, if a voluntary agreement cannot be reached through negotiation, because electricity licence holders have a public service role to undertake, they do have access to compulsory procedures. In such circumstances, electricity licence holders may seek to pursue:
- either a Compulsory Purchase Order (CPO) under Schedule 3 to the Electricity Act 1989, (the “1989 Act”)
- or apply for a “necessary” (compulsory) wayleave under Schedule 4 to the 1989 Act
This guidance for applicants and landowners and/or occupiers on the granting of a necessary (compulsory) electricity wayleave outlines the statutory process in England and Wales.
The UK Energy Portal
The UK Energy Portal processes applications for consent under the Electricity Act 1989 for overhead power lines and necessary wayleaves.
Fees
Fees for applications for “Necessary Wayleaves” and for “Tree Lopping and Felling Orders” under Schedule 4 of the Electricity Act 1989 are implemented by The Electricity (Necessary Wayleaves and Felling and Lopping of Trees) (Charges) (England and Wales) Regulations 2013, (the “2013 Regulations”). The regulations set charges that are payable by electricity licence holders to the department for processing applications for necessary (compulsory) wayleaves and for tree lopping or felling orders.
Revised application fees were introduced from 6 April 2017 by The Electricity (Necessary Wayleaves and Felling and Lopping of Trees) (Charges)(England and Wales)(Amendment) Regulations 2017.
The fees from 1 April 2017 are:
| Type of application | Fee |
| Application for a necessary wayleave | £236.50 |
| Application for a tree lopping or felling order | £236.50 |
The 2013 Regulations also set out charges to be payable by the licence holder in respect of the costs associated with an appointed Inspector who conducts a written representations procedure or oral hearing on behalf of the Secretary of State. Charges payable under the regulation are different for applications relating to electric lines in England and Wales. The daily Inspector rate or pro rata for part of a day will be:
| Pro rata rate | Body |
| £1000 | for any procedures conducted by The Planning Inspectorate England |
| £742 | for any procedures conducted by Planning & Environment Decision Wales |
Both daily rates are plus the Inspector’s travel and subsistence.
Processing
This guidance provides advice, some Frequently Asked Questions, and easy flowcharts identifying each step in the necessary wayleave and tree lopping and felling process, from making an application to the Secretary of State through to requests for hearings and how these are conducted under either written representations procedure or by oral hearing.
There is a statutory 3 month period for submission of applications by electricity licence holders to the Secretary of State for the grant of a necessary wayleave following the service of a Notice to Remove being made by the owner and/or occupier.
If an application is made to the Secretary of State within this 3 month period, the existing wayleave is temporarily extended until the necessary wayleave application is determined by the Secretary of State. This provides the electricity licence holder with legal permission to retain the line on the relevant land.
If an application is not made to the Secretary of State within this time, then in accordance with Paragraph 8(3) of Schedule 4 to the 1989 Act, the licence holder must remove the line.
The licence holder is able to apply to the Secretary of State at any time after the 3 month period has expired for a necessary wayleave, however, the licence holder would be retaining the line on the land without the consent of the owner and/or occupier and, the line may be in place without legal permission.
Hearings
Should negotiations between the electricity licence holder and landowner and/or occupier break down and the Secretary of State is in receipt of an application from the licence holder for the grant of a necessary wayleave, the Electricity (Necessary Wayleaves and Felling and Lopping of Trees)(Hearing Procedures)(England and Wales) Rules 2013 provide for objections to be heard through a written representations procedure or oral hearing procedure conducted by an Inspector appointed by the Secretary of State. These Hearings rules apply to all applications made to the Secretary of State for a necessary wayleave on or after 1 October 2013. For necessary wayleave applications made by electricity licence holders to the Secretary of State before 1 October 2013 and where a hearing has been requested, these Hearings will be conducted under the provisions of The Electricity (Compulsory Wayleaves) (Hearings Procedure) Rules 1967.
Read further guidance on both sets of Hearings Rules.
Compulsory purchase orders
In accordance with Schedule 4 to the Electricity Act 1989, Compulsory Purchase powers can be used by statutory undertakers to acquire land or rights over land for the installation and retention of electric lines. Compulsory purchase is intended as a last resort to secure the assembly of all the land needed for the implementation of projects. Compulsory Purchase Orders (CPOs) should only be made where there is a compelling case in the public interest to do so. In such cases, the developer (also known as the Acquiring Authority) will make an Order and then seek confirmation of that Order from the Secretary of State. Where statutory objections are raised (i.e. objections from owners, lessees and occupiers) the Secretary of State is required to hold a public inquiry before making a decision on the Order. Public inquiries in England and Wales relating to electric lines are held in accordance with provisions in the 1989 Act and The Acquisition of Land Act 1981.
Inquiries are conducted under The Compulsory Purchase (Inquiries Procedure) Rules 2007. Or in circumstances where the Secretary of State considers it is more appropriate for the inquiry to be conducted by written representations procedure, The Compulsory Purchase (Written Representations)(Ministers) Regulations 2004 will be engaged if the objector(s) to the Compulsory Purchase Order have provided their permission to the Secretary of State for the inquiry to proceed in this way. Where the Compulsory Purchase Order relates to statutory undertakers’ land it is necessary to refer to Section 16 or 31 of the Acquisition of Land Act 1981.
The Ministry of Housing, Communities and Local Government has produced guidance on compulsory purchase procedures for England only.