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Revolt News 114
1. MAIN REPORT (following news113.11/12): NGC enter Station Farm, Alne, over a locked gate, around 9.30 a.m., but eventually withdrew after objectors repeatedly challenged them.
About two dozen objectors turned up at very short notice during the working day and in the most atrocious conditions of wind and rain. There was a small media presence - BBC and local papers.
NGC adopted a confrontational approach. They exceeded their powers, and in any case did not behave reasonably. They should have referred back to the land agents as requested. Despite the landowner's clear refusal of entry, and the equally clear professional land agent's letters to NGC to the same effect, NGC insisted on taking entry over a locked gate and attempted a walk-on survey.
The land agents Stephensons of York had written to the owners, J & R Gill, on 4.2.02 saying "if you are approached by National Grid or Balfour Beatty, please refer them to me and do not let them take entry on to your land". This was made clear to the NGC personnel this morning, but NGC simply ignored requests to refer to Stephensons.
NGC were led by Guy Bradbury who instructed Balfour Beatty surveyors to climb over the locked gate, after the Gills had said they did not agree to entry and after I explained Revolt's claim that entry would be unlawful. Guy Bradbury claimed that entry would be lawful. Guy Bradbury and the surveyors then climbed over the locked gate, followed by two policemen who had arrived with NGC though in a separate vehicle.
The policemen were very good, in my view, remaining calm and polite and not intervening in the dispute. They had explained that they were there only to keep the peace. Some objectors asked them to stop NGC personnel from entering, and complained that they had been called by NGC and further questioned whether their own entry on the land was legal. The Gills confirmed they had not called the police and did not agree to their entry. Neither the police nor the objectors could say whether the police's entry was lawful; it might depend on laws other than the Electricity Act. I suggested it would be good form for the police, if called by one side, to let both sides know in advance rather than turn up with one side at their behest.
Objectors followed into the field, with the consent of the landowner. This could be the world's wettest field! There was standing water in every rut and between the tufts of grass. It was also raining pretty hard. A planning Condition attaching to NGC's consent for the line reads: "11. Work in connection with the development shall be undertaken in dry weather conditions and when the soil is in a dry state. Reason: To minimise the risk of compaction and long term damage to soil structure."
Guy Bradbury claimed that the condition only applied to construction work, but the wording clearly applies to "work in connection with the project" and would properly apply to all associated work. Guy Bradbury said NGC regarded it as not applying to a walk-on survey. However, NGC's faxed reply to Stephensons letter of 4.2.02 refers to "a pedestrian survey and soil investigation works". Soil investigation has previously been by a tracked vehicle making probes to sample the soil, which comes under the Electricity Act powers of entry for exploration which in turn requires a particular form of notice which was not given. There was no tracked vehicle this morning but the landowners might, from NGC's letter, reasonably expect one at any time.
On the field, the surveyors hammered a peg into the ground which was then removed. Guy Bradbury claimed that they were being obstructed in their legal work. I argued that their work was not legal, and their claim was a matter of opinion. The Electricity Act Schedule 4 paras 6, 7 and 8 deal with wayleaves but do not make obstruction unlawful. Schedule 4 para 10 deals with entry for exploration (which doesn't apply in this case as the due notice was not served). The supplementary para 11 does say "any person who intentionally obstructs a person acting in the exercise of any power conferred by or under paragraph 9 or 10 above shall be liable on summary conviction to a fine ...". Although that doesn't apply to this morning's affair, which was not under paragraphs 9 or 10, it would only apply to the intentional obstruction of NGC in their lawful work. In this case the objectors were acting responsibly in the reasoned belief that NGC's entry was unlawful, and they would therefore not be intentionally obstructing lawful work.
The NGC party then withdrew from the field. Revolt's notes on the limits to NGC's wayleave powers are appended below.
AND NOW FOR THE REST OF THE NEWS ...
2. Credit where it's due. NGC has admitted its contractors wrongly entered land at Sowerby Caravan Park without giving any notice. The land had livestock still subject to biosecurity. NGC have written an apology to the owners and are looking to improve their communication procedures with contractors to prevent a recurrence.
3. At 11.00 a.m. this morning Balfour Beatty were seen working on the NGC project in a field on the north side of the minor road from Knayton to Brawith. A Balfour Beatty pick up truck was on the field, in these extremely wet conditions, in contravention of the planning condition. This is not a matter for landowners to agree, it is for Hambleton DC to monitor.
4. At 11.35 a.m. a heavily loaded 8 leg rigid tipper was at the Balfour Beatty roadworks near Cotcliffe House two miles north west of Borrowby. In order for another vehicle to pass, on the narrow minor road going east towards Leake on the A19, the heavy lorry proceeded eastwards down the steep bank and across the small Cotcliffe Bridge over Cod Beck and then up the steep wooded bank as far as Leake House in order to turn round and return over the same route. This is in clear contravention of the planning conditions for building the access and the associated highways requirements which restrict the works traffic to the western side of the accesses. Works traffic should not travel east of Cotcliffe House nor across the small Cotcliffe Bridge. Perhaps the highways authorities have failed to assess the requirements for turning.
5. For pictures of all of the above please see http://www.revolt.co.uk/cnews114.html
APPENDIX - Notes on limits to NGC's powers of access under compulsory wayleaves.
See also Revolt news113.11 of 12.2.02:
Summary of factors bearing on the issue.
A reading of the Electricity Act and the wayleave documents, together with correspondence and parliamentary answers, shows that for a 'necessary' (ie compulsory) wayleave such as in this case:
1. The wayleave document itself, by reference to para 6 of Schedule 4 of the Electricity Act, authorises NGC to install and keep installed the line in the position shown by a green line on a map. It does not grant access over the land owned by the landowner. The wayleave document does not even mention access.
2. Such access as is reasonably necessary to install the line may possibly be claimed as an ancillary right. However access (including details such as route and working area) should be with the agreement of the landowner, as made clear in the Parliamentary answer of Nick Raynsford 12.5.99 (Hansard col. 394). Further, that answer was not equal in respect of NGC and the landowner, as it favoured the landowner by declaring the purpose of agreement was to avoid inconvenience to the landowner. The answer may therefore indicate a presumption in favour of the landowner until agreement is reached or other legal steps taken.
3. The Electricity Act Schedule 4 defines the necessary wayleave as "consent for the licence holder to install and keep installed the electric line ... and to have access to the land for the purpose of inspecting, maintaining, adjusting, repairing, altering, replacing or removing the electric line". Energy Minister Brian Wilson points to this in a letter of 30.8.01 to Anne McIntosh MP. However, the Act thereby defines the necessary wayleave specifically and in detail, setting out precisely the purposes for which it consents to access. All of those purposes relate to an existing line. Access to install a new line is not included. Therefore, the necessary wayleave, as defined in Schedule 4, does not grant powers of access to install a new line. Such access must be negotiated for the landowner's agreement as in 2 above.
4. In PQ No. 2001/390 20.7.01 in reply to Anne McIntosh MP, Energy Minister Brian Wilson states: "The National Grid Company has been granted compulsory access to land in certain places along the route of the North Yorks power line and I would expect all parties to behave lawfully in the exercise of that right". That is an inappropriate and careless answer to the question made. As from 2 and 3 above, NGC was granted wayleaves with power to install a line, but was not granted access of any sort for the North Yorks line which is yet to be installed. The Minister is wrong in fact.
5. NGC solicitor Angela Quinn obtained a letter of 29.5.01 from Lawrence Cadman, a civil servant at DTI, saying that reasonable rights of access for installation must be "axiomatic" in the right granted, and thus "there is no legal obligation on the company to agree the access". This view, obtained privately by NGC, seems to display partiality both in the manner of its production and in its conclusion, and it is contradicted by the Minister's statement of 12.5.99.
6. NGC General Counsel and Company Secretary Alison Kay in a letter of 21.6.01 to me addressed the issue. First she falsely compared the Pintail Nest incident with cases where landowners were unwilling to discuss access arrangements. Second she relied on the flawed letter from Lawrence Cadman. There are other criticisms of her letter. In a letter of 23.7.01 Alison Kay says, should it prove necessary, "we would be prepared to go to court to enforce our 'agreed' access routes". This does indeed seem to be the correct response to failing to gain agreement of the landowner in a reasonable time and after reasonable efforts.
7. My conclusion is (a) that the formal powers do not expressly provide for NGC to take such access as it wishes, even if reasonably necessary, but that NGC must seek agreement of the landowner in order to avoid inconvenience to the landowner, and (b) having made reasonable but unsuccessful effort over reasonable time to reach agreement with the landowner, NGC should not be entitled to force entry nor to take entry over a locked gate nor against the express refusal of the landowner, but should be able to seek a court order to grant such access as is reasonably necessary. I would then expect that the landowner would be entitled to make representations to the court in its consideration of such an order. Consequently, the entry at Pintail Nest was unlawful.