The terms Wayleaves and Easements are often used interchangeably, however, they are not the same in law and have different requirements. While both refer to rights over another owner’s land, they are treated very differently in law which can cause confusion or difficulty if the wrong phrase is used.
Easements require there to be both a servient and a dominant tenement. Essentially, this means that land must have the benefit of an easement while other land (usually neighbouring land) has the burden of that easement. If a right of way is used as an example the land with the benefit will be the land that has the right to use that right of way while the owner of the right of way has the burden. As such easements are only appropriate to be used for utility and other provisions if they can be granted and received by neighbouring or nearby land.
This is incompatible with most utility easements where a utility provider will not have neighbouring land but will still have the right to lay and maintain service media over land that they do not own and it is in these circumstances that wayleaves are used. There is no statutory definition of a wayleave however a definition that is widely used is that a wayleave is a consent for a party (usually a utility provider) to install service media (such as water, electricity or oil) and keep and maintain that service media over land. The ‘maintain’ element includes an allowance for the party with the benefit of the wayleave to access the property for maintenance.
This final point above can cause issues for developers as the party will have the right to enter onto land to maintain the wayleave which will mean that they will need full access and this can of course affect any proposed building.
While easements directly affect land and are registered on the title to the property at the Land Registry, wayleaves are agreements and so do not normally appear on Land Registry titles. This can cause significant problems when agreements are lost, particularly if this is not the fault of anyone in particular. This can happen when historic wayleaves are granted, the work to install the service media is completed and much later the property is sold without the wayleave being disclosed to the buyer. The party with the benefit of the wayleave may not need to complete any maintenance work for several years and the existence of the wayleave is then not known by future buyers until there is a problem. While land owners can request that the service media is moved, the party with the benefit of the same does not usually have an obligation to agree to this (although it is always worth checking any historical documentation that is available) and in any event this could be costly.
In some circumstances compensation will be awarded in relation to such wayleaves, however, specialist advice should be sought before proceeding to see what value such compensation is likely to be.
Even when a landowner does not agree to a wayleave utility providers can contact the Secretary of State who can grant wayleaves without the land owner’s consent. In these circumstances compensation would usually be awarded and the level of this will be determined in each individual case and will depend on the loss that has actually been suffered. This is of particular consequence in relation to agricultural crop land, where any damage caused by the installation or maintenance of a wayleave can have effects over yield for many years.
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