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ADVICE to LANDOWNERS (as at 20.4.99)
|This advice consolidates and updates earlier notes issued by REVOLT. It has been compiled with reference to the Electricity Act 1989 and in consultation with lawyers which is ongoing. It is offered in good faith on condition that REVOLT and the author accept no liability, as they are not indemnified for it.|
|Contacts for wayleave and site matters:|
- Willie Osborne 01609 772278
- Peter Johnson 01845 537443
For general information:|
- Robert Adamson 01845 501058
- Website http:// www.revolt.co.uk
1. The present position
NGC has government consent and wayleave powers for most of its planned Lackenby-Picton-Shipton line, usually as compulsory powers over objecting landowners. Several wayleaves have not yet been granted. New hearings were held in January for which decisions should be announced soon. Other proceedings are expected for unresolved matters.
NGC has probably completed most walk-on survey work and is presently seeking access for a "Geotech Survey", also called a CPT, using a large tracked vehicle to penetrate and test the subsoil. Construction was planned to start this year, probably in April, but seems to be delayed.
2. A sensible approach - and free advice
It seems to us that a sensible approach, consistent with our policy of non-co-operation within the law, is to refuse access to any land or facility unless NGC or its agents provide, 14 days in advance, written notice with clear authority for the precise access required. REVOLT offers free legal advice on any such notices forwarded by landowners.
3. Entry for exploration
The Electricity Act 1989, Schedule 4 Paragraph 10, provides NGC with limited rights of entry for exploration including penetrating and testing the subsoil. Testing subsoil, as in the Geotech Survey, requires special notice under subparagraph 4(a).
NGC has a standard Notice of Entry on Land under this provision of the Electricity Act, saying "Access to your land will be taken at least 14 days from the date of this notice" without specifying time and place. You can ask for details and insist they comply with their legal limitations. NGC tries to use this open-ended notice months afterwards. Our solicitors say that is not within their legal powers.
NGC's notice and letters have so far failed to give the special notice required for the Geotech Survey. They had not said that it involved examining the subsoil. Until April we did not know what it was.
Until March this year access for the Geotech Survey was sought only under Paragraph 10 powers. Letters issued in March then referred to these and the wayleave powers, but did not say which works were under which powers. This confusion is a further failure to meet legal requirements. There is doubt whether the Geotech Survey is properly exploration or preparation for construction which should be under wayleave powers. NGC wants it both ways.
4. On-site objections
Intentionally obstructing a properly authorised person under Paragraph 10 is a criminal offence liable to a fine not exceeding level 3. The Geotech Survey on the basis of notices so far given would not be properly authorised in the view of our solicitors. NGC take a different view. Objectors have asked NGC to leave and have voiced their objections, and have used the access roads and tracks, without physically obstructing the Geotech machine but with the result that NGC has withdrawn and threatened legal action. We advise objectors to keep calm and obey the police.
5. Limitations to entry for exploration
(a) Entry must be connected with activities authorised by NGC's licence. It would be difficult to dispute this now along the approved line route.
(b) Exploration has to be "for the purpose of ascertaining whether the land would be suitable" for any authorised purpose. This does not allow surveying as preparation for construction, but it does allow exploration to determine suitability for particular pylon types. This fine distinction was probed between our solicitors and NGC in 1994, after which NGC agreed to withdraw marker pegs.
(c) Entry has to be at a reasonable time. You may ask that it be by appointment when you can be present and prepared.
(d) NGC must give occupiers 14 days notice of such exploration. Probing the subsoil requires special notice in the 14 days notice of entry for exploration. Ask for written notice and check its exact detail.
(e) Any person entering must produce evidence of his authority if asked to do so.
(f) This power of entry does not apply to any "building", or any garden, yard, etc.
(g) NGC must also make good any damage done to the land.
You are entitled to compensation for damage to land or to moveable possessions, and also for any disturbance to your enjoyment of the land or possessions, arising from exploration or from compulsory wayleaves. This is ultimately determined through the Lands Tribunal.
There is also a scale of compensation payments and rental for granted compulsory wayleaves. It is much less than the large "inducements" paid out for voluntary permanent easements.
Compensation for damage to business activities is unclear. We are still probing it.
7. Entry for construction
Access rights for construction work derive from the wayleaves. When seeking voluntary wayleaves, NGC issue a Notice under Electricity Act 1989 Schedule 4 paragraph 6(1). That paragraph qualifies NGC's powers under compulsory wayleaves "to install and keep installed and to have access to the land for the purpose of inspecting, maintaining, adjusting, repairing, altering, replacing or removing" the line.
The DTI decision letters conferring the wayleaves are issued with a map showing the whole property outlined in pink and the line route marked by a thin green pencil line. The wayleave is only granted over the "lands marked in green".
NGC does not have arbitrary access to any part of the land through compulsory wayleaves, only access which is reasonably necessary for the stated purposes. NGC personnel have wrongly asserted that they can take access anywhere they please on the whole property. NGC seek agreement from landowners to access routes, but landowners can argue for what is reasonable to them.
The voluntary agreement offered by NGC and approved by NFU and CLA gives NGC powers for the works "across the land owned by the grantor", with powers of entry "on the said land" and of felling or cutting obstructing trees or hedges. Conditions require NGC to give 7 days notice of entry and to keep to any access route specified by the grantor across the land.
The Construction Charter, only recently issued, is NGC's own standard. It offers only 7 days' notice, yet in a letter NGC had pledged 28 days. Our lawyers are arguing for more.
8. Obtaining wayleaves
Where a new wayleave is sought, NGC must give the occupier and owner a 21-day notice, requesting a voluntary agreement. After 21 days NGC may apply for compulsory powers, in which case you will be entitled to a formal hearing. Paragraph 6(4) of Schedule 4 prohibits a compulsory wayleave being granted over land "covered by a dwelling" or with planning permission for it. A dwelling means a building last occupied or intended to be occupied as a private dwelling and includes any garden, yard, outhouses and appurtenances belonging to it.
Under-grounding does not require Electricity Act consent or planning permission, but it does require wayleaves for access to install and maintain. NGC seek voluntary wayleaves by agreement, in the absence of which they resort to compulsory powers. Although the procedure under section 8 above also applies to underground lines, NGC has sought a Compulsory Purchase Order (CPO) instead which can result in a public inquiry. The Construction Charter also applies to under-grounding.
10. Location of the line
The location of the line is determined by maps issued with the decision letters. Given NGC's past errors, you may wish to check any maps they put to you. Hambleton DC should have definitive copies. The main route consents allow 200 metres either side of the marked line, 100 metres for alternative routes. The wayleaves however fix the line and each pylon precisely. There are also numerous conditions set out in the decision letters restraining NGC. We advise using them all to the full.
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