I contacted the Distribution Network Operator ("DNO") at the outset and confirmed with their wayleave department that there had never been a wayleave agreement in place. I then said I would like them to move the cable and put it underground (still on my land) but out of the way of the three houses. They quoted me for the work, but I said they should be paying for it as they do not have permission to have the cable or poles on my land. I was then advised that they would only discuss this if I formally served 12 months notice for the removal of the line and poles. Once I had done this, within the statutory 3 month period they applied to the Secretary of State for a Necessary Wayleave, but said they were in negotiation with me so requested the application be held in abeyance.
I met with the DNO on site and we agreed that they would produce a plan for the rerouting and recommend to their bosses that they pay for the work if I agree to do the trenching and sign an easement for the cable in the new location. Now, a few weeks later they have said that even if this is agreed it may take over a year to actually schedule the work and it would be much quicker if I paid for it. I suspect they have been instructed by the boss to try and strong arm me in to paying the cost of the work to avoid any further delay.
I have this morning been looking at what the actual legislation says, it is covered by the Electricity Act 1989. I am hoping that other Lemon Fools can sense check my reading of one part of the law relating to Necessary Wayleaves. I believe the relevant section is Schedule 4, Paragraph 6 which I have copied in full below:
Acquisition of wayleaves
6
(1) This paragraph applies where—
(a) for any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on, it is necessary or expedient
for a licence holder to instal and keep installed an electric line on, under or over any land; and
(b) the owner or occupier of the land, having been given a notice requiring him to give the necessary wayleave within a period (not being less
than 21 days) specified in the notice—
(i) has failed to give the wayleave before the end of that period; or
(ii) has given the wayleave subject to terms and conditions to which the licence holder objects;
and in this paragraph as it so applies “the necessary wayleave” means consent for the licence holder to instal and keep installed the electric line on, under or over the land and to have access to the land for the purpose of inspecting, maintaining, adjusting, repairing, altering, replacing or removing the electric line.
(2) This paragraph also applies where—
(a) for any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on, it is necessary or expedient
for a licence holder to keep an electric line installed on, under or over any land; and
(b) the owner or occupier of the land has given notice to the licence holder under paragraph 8(2) below requiring him to remove the electric line;
and in this paragraph as it so applies “the necessary wayleave” means consent for the licence holder to keep the electric line installed on, under or over the land and to have access to the land for the purpose of inspecting, maintaining, adjusting, repairing, altering, replacing or removing the electric line.
(3) Subject to sub-paragraphs (4) and (5) below, the Secretary of State may, on the application of the licence holder, himself grant the necessary wayleave subject to such terms and conditions as he thinks fit; and a necessary wayleave so granted shall, unless previously terminated in accordance with a term contained in the wayleave, continue in force for such period as may be specified in the wayleave.
(4) The Secretary of State shall not entertain an application under sub-paragraph (3) above in any case where—
(a) the land is covered by a dwelling, or will be so covered on the assumption that any planning permission which is in force is acted on; and
(b) the line is to be installed on or over the land.
(5) Before granting the necessary wayleave, the Secretary of State shall afford—
(a) the occupier of the land; and
(b) where the occupier is not also the owner of the land, the owner,
an opportunity of being heard by a person appointed by the Secretary of State.
(6) A necessary wayleave granted under this paragraph—
(a) shall not be subject to the provisions of any enactment requiring the registration of interests in, charges over or other obligations affecting land; but
(b) shall bind any person who is at any time the owner or occupier of the land.
(7) Where in pursuance of a necessary wayleave granted under this paragraph a licence holder has erected on any land supports for an electric line, he shall be deemed to have an interest in that land for the purposes of section 7 of the M3Mines (Working Facilities and Support) Act 1966.
(8) In this paragraph “dwelling” means a building or part of a building occupied, or (if not occupied) last occupied or intended to be occupied, as a private dwelling or, in relation to Scotland, a private house, and includes any garden, yard, outhouses and appurtenances belonging to or usually enjoyed with that building or part.
My reading is that the situation I am in is covered in sub-Paragraph 2. Sub-Paragraph 3 says the Secretary of State can give a Necessary Wayleave on the terms they see fit. But sub-Paragraph 4 seems to pretty clearly say that the Secretary of State will not grant a necessary wayleave if it is on land covered with a dwelling. This seems to be exactly the situation in my case, both the existing and approved houses will be on land under the line of the cable. I therefore read this to mean that the DNO's application for a Necessary Wayleave is bound to fail.
I would be very grateful for any input from others on how they read the relevant sections.