William Tracey Limited Against Sp Transmission Plc
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2016] CSOH 14 |
| Court | Court of Session |
| Published date | 19 January 2016 |
| Year | 2016 |
| Date | 19 January 2016 |
| Docket Number | CA45/15 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 14
CA45/15
OPINION OF LORD BRODIE
In the cause
WILLIAM TRACEY LIMITED
Pursuer;
against
SP TRANSMISSION PLC
Defender:
Pursuer: Dean of Faculty, Irvine; Pinsent Masons LLP
Defender: Wilson QC, G Walker; DWP LLP
19 January 2016
Introduction
[1] The pursuer is William Tracey Limited. It is a recycling and waste management company. It is the heritable proprietor of land at 49 Burnbrae Road, Linwood, Paisley (the “Linwood Site”). The site was purchased by a related party to the pursuer, the William Tracey Private Pension Fund (the “Pension Fund”) in 1996. The pursuer leased the site from the Pension Fund by lease dated 23 and 29 June 1998 and registered in the Books of Council and Session on 9 July 1998. The date of entry under the lease was 31 December 1997. The pursuer occupied the site by agreement with the Pension Fund from 27 September 1997. Since that date, the pursuer has been the operator of the facility at the Linwood Site and has possessed the site, initially as tenant, and, since 2006, as proprietor.
[2] The defender is the owner and operator of the electricity transmission network in central and southern Scotland. It is a licence holder for the purposes of the Electricity Act 1989 (the “1989 Act”). The electricity transmission network owned and operated by the defender includes the Elderslie to Johnstone 132kV overhead power line known as the “AU Route”) (the “AU Route”). Overhead electricity cables forming part of the AU Route bisect the Linwood Site in an east-to-west direction. Those cables are supported by a lattice steel tower identified by the alphanumeric AU005 (“AU005”). AU005 is located close to the Linwood Site’s eastern boundary. AU005, the overhead cables it supports, and their associated apparatus (together, the “Equipment”) have been in situ since the pursuer first took possession of the Linwood Site in 1997.
[3] As the holder of a transmission licence, the defender has, by virtue of section 9 of the 1989 Act, certain duties and, by virtue of section 10 of the Act, certain powers. The powers include the acquisition of wayleaves, these being consents to the installation and keeping installed of electrical lines on, under or over land and to subsequent access to the land for the purposes of inspection and maintenance etc. Provision is made for the acquisition and temporary continuation of wayleaves by paragraphs 6 to 8 of schedule 4 to the Act. A wayleave may be granted by agreement between the owner or occupier of the land and a licence holder (a “voluntary wayleave”) or it may be granted by the Scottish Ministers on application being made to them by the licence holder in the event of it being necessary or expedient to install etc an electric line in circumstances where the owner or occupier of the land has failed to give a wayleave when required by the licence holder to do so (a “necessary wayleave”). Where a necessary wayleave is granted by the Scottish Ministers, paragraph 7 of schedule 4 provides for the recovery by the occupier/owner of the land of compensation in respect of the grant. The wayleave, whether it be a voluntary wayleave or a necessary wayleave is of the nature of a personal right. It confers no interest in the land on the licence holder. It does not bind a singular successor as owner or occupier or the land.
[4] The predecessor in title to the Pension Fund as proprietor of the Linwood Site was Thomas Houston & Son (Johnstone) Limited (“Houston”). In terms of an agreement dated 26 April and 1 May 1991, Houston granted a voluntary wayleave in favour of Scottish Power plc for the installation etc of the Equipment on the Linwood Site.
[5] In or about 2005 the defender approached the pursuer seeking the grant of a voluntary wayleave in respect of the Equipment on the Linwood Site. The pursuer declined to grant a voluntary wayleave. On 8 December 2010 the pursuer issued a notice of removal to the defender in accordance with paragraph 8 of schedule 4 to the 1989 Act. The notice required the removal of the Equipment by the defender within 3 months of the date of the notice. On 3 March 2011 the defender submitted an application to the Scottish Ministers for a necessary wayleave in respect of the Linwood Site pursuant to paragraph 6 of schedule 4 to the 1989 Act. On 17 February 2014, the pursuer signed an agreement with the defender by which the pursuer consented to the continued presence of the Equipment on and over the Linwood Site for a limited period of two years and to the Scottish Ministers granting a necessary wayleave in those terms. Under the agreement, the pursuer consented to the wayleave for the sole purpose of facilitating the efficient removal of the Equipment and the diversion of the AU Route away from the Linwood Site. On 13 August 2014, following the recommendations of a reporter, the defender’s applications of 3 March 2011 and 21 June 2012 were granted by way of a single wayleave.
The pursuer’s claim
[6] The necessary wayleave granted on 13 August 2014 was of prospective effect only. In the circumstances the pursuer contends that from the date of the acquisition of the Linwood Site by the Pension Fund in 1997 until 13 August 2014, no wayleave or consent of any sort was in place and therefore the presence of the Equipment constituted an unlawful encroachment by the defender on the pursuer’s property. In this action the pursuer sues for what it avers is its consequential damage which it assesses in the sums of (a) £4,686,727.66 and (b) £1,419,365.27.
Parties’ position at debate
[7] The case called for debate on the defender’s general plea to the relevancy. The pursuer was represented by the Dean of Faculty and Ms Irvine. The defender was represented by Ms Wilson QC and Mr Gavin Walker. Parties had previously lodged written notes of argument. When she came to address the court, Ms Wilson’s primary motion was for dismissal on the ground that in the circumstances disclosed by the pursuer’s averments, the presence of the Equipment on the Linwood Site during the period between the change in ownership and occupation of the land in 1997 and the grant of a necessary wayleave by the Scottish Ministers in 2014 did not amount to encroachment. Ms Wilson had two fall-back arguments in the event that her primary argument was unsuccessful: first, that there was no basis for a damages claim for the period after the notice to remove was served; second, that, given the terms of the lease by the Pension Fund in its favour, the pursuer had failed to instruct its title to sue qua tenant in respect of the period between taking entry under the lease and acquiring title as proprietor.
[8] Although the debate was on the defender’s plea, because the defender took the position, as set out in its note of argument, that the question as to whether a delict is committed by a licence holder who maintains equipment on land after a change of ownership/occupation had been determined in its favour by the decision of Lord Glennie in Patersons of Greenoakhill v SP Transmissions Limited 2010 SLT 115, parties had agreed that the pursuer should begin the debate with a view to explaining the basis upon which it was said that the presence of the Equipment had amounted to an encroachment. I therefore heard the Dean of Faculty first and then Ms Wilson. The Dean of Faculty replied in a brief second speech.
Relevant statutory provisions
[9] The Electricity Act 1989 provides, inter alia:
“9. General duties of licence holders.
...
(2) It shall be the duty of the holder of a licence authorising him to transmit electricity—
(a) to develop and maintain an efficient, co-ordinated and economical system of electricity transmission;
...
10. Powers etc. of licence holders.
(1) Subject to subsection (2) below, Schedule 3 to this Act (which provides for the compulsory acquisition of land) and Schedule 4 to this Act (which confers other powers and makes other provision) shall have effect—
(a) in relation to . . . a person authorised by a licence to transmit electricity; and
(b) to the extent that his licence so provides, in relation to an electricity distributor or any other licence holder;
and references in those Schedules to a licence holder shall be construed accordingly.
(2) Where any provision of either of the Schedules mentioned in subsection (1) above is applied to a licence holder by his licence, it shall have effect subject to such restrictions, exceptions and conditions as may be included in the licence for the purpose of qualifying that provision as so applied or any power or right conferred by or under it.
...
SCHEDULE 4
OTHER POWERS ETC. OF LICENCE HOLDERS
...
“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...
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Petition Of William Tracey Limited Against (1) The Scottish Ministers; (2) The Advocate General For Scotland And (3) The Lord Advocate
...A licence holder’s powers are summarised by Lord Brodie in paragraph [3] of his Opinion in William Tracey Limited v SP Transmission plc 2016 SLT 678 as follows: “The powers include the acquisition of wayleaves, these being consents to the installation and keeping installed of electrical lin......