Access by Utility Companies – What to look out for

13th October 2014

As the economy grows, utility and infrastructure companies are beginning to programme their investment into major capital projects, such as new gas mains, replacing overhead electric cables, road improvement schemes and some major development schemes like the Carbon Capture programme.

Invariably this impacts landowners and occupiers directly, as the majority of schemes pass across rural land and property. Most utility companies and infrastructure providers will try and exert powers granted under various acts dating back over the past century, Network Rail’s reliance on the Railway Act 1842 is a classic example. We have come across many situations where these are out of date and now not relevant, or which give open ended powers, with some being quite unbelievable.

My personal gripe is that these powers were originally granted to nationalised companies, but following the sectors’ privatisation, private firms have taken their place retaining such statutory rights, but have a direct remit to provide profit and dividend to their shareholders, often at the expense of the parties affected.

The first thing to understand is what powers they may have and what they can and can’t do. For example, are they able to construct a compound facility on your land? Can access be taken to land outside of the notice area? Are you obliged to provide land for welfare facilities? Do they have the ability to acquire your land? Some of the situations that a utility company or infrastructure provider has to deal with aren’t necessary covered under statute, so access can only be permitted by agreement.

If your land is required for access or to be subject to a scheme, a utility company will be obliged to compensate you for your loss. Here are a few points to consider;

Firstly that relating to loss of income, whether it be caused from damage to the ground, loss of crops, inconvenience of moving livestock, loss of trade, the list goes on. It is important to consider this in some detail.

Secondly, there will inevitably be some reinstatement to do once the works are complete. It amazes me the amount of times utility companies take access over the winter period and looking ahead, be prepared for this. I would advise reinstatement rates are agreed before entry is permitted which may include hourly charges for undertaking sub-soiling, discing etc to remove any deep ruts or soil compaction caused by the works. This makes a final claim much easier to settle and reduces the need for speculation. Many underestimate the time and cost of such reinstatement measures and this can be a contentious point when trying to settle a claim with the utility company.

Thirdly, inconvenience and disturbance payments. It is vital that from the start, you keep a record of all your time spent in correspondence with the utility company and any inconvenience this may bring, including your time speaking with an agent representing you. Such time records should also include any additional requirements such as amendments to your agri-environmental stewardship scheme, additional time spent in spraying, harvesting or cultivating or taking more time feeding or checking livestock.

In addition to the above, there may also be a capital payment due if a new easement is created. This will relate to the diminution in value to the property following the installation of the new apparatus. Such claim should not be overlooked, and it is very important to get a clear understanding of the effect such apparatus can have on the value of the underlying asset. If a new wayleave is created or an existing altered, make sure the agreement is accurate and you are receiving the correct annual payments.

Lastly, don’t forget that the utility company will cover all your expenses including the appointment of an agent and other professionals to act on your behalf. Getting professional advice can be beneficial to ensure you are fully compensated and all your concerns are addressed right from the start.

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