Petition Of William Tracey Limited Against (1) The Scottish Ministers; (2) The Advocate General For Scotland And (3) The Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2016] CSOH 131 |
| Date | 14 September 2016 |
| Published date | 14 September 2016 |
| Docket Number | P1088/14 |
| Court | Court of Session |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 131
P1088/14
OPINION OF LORD GLENNIE
In Petition of
WILLIAM TRACEY LIMITED
Petitioner
against
(1) THE SCOTTISH MINISTERS; (2) THE ADVOCATE GENERAL FOR SCOTLAND
AND (3) THE LORD ADVOCATE
Respondents
SP TRANSMISSION PLC
Interested Party
Petitioner: Gale QC, Irvine; Pinsent Masons LLP
Respondents: Burnet; Scottish Government Legal Directorate
Interested Party: Wilson QC, Walker; DWF LLP
14 September 2016
Introduction
[1] The question in this case is whether an owner or occupier of land over which a necessary wayleave has been granted under Schedule 4 to the Electricity Act 1989 (“the 1989 Act”) in respect of an overhead power line, tower and associated apparatus (collectively “the apparatus”), and who is entitled under the 1989 Act to compensation in respect of that grant, is entitled also to compensation for the period, or any part of it, when the apparatus was on his land prior to the date of the grant. Although the question arises in the context of a particular dispute about a particular site, the point is of general application.
The relevant circumstances
[2] The petitioner is the owner of land at 49 Burnbrae Road, Linwood, Paisley (“the Linwood Site” or “the Site”) and the operator of a major waste management and recyclate processing facility (“the facility”) on the site. The facility currently processes over 280,000 tonnes of waste a year and has a licenced capacity for up to 500,000 tonnes a year. Measured by tonnage it is the largest stand-alone recycling facility in Scotland, processing material from all over the country. The facility is also used for the manufacture of biomass fuel and refuse-derived fuel. It has a wide and diverse client base, domestic, European and international, including 12 local authorities as well as a number of firms of different sizes within the private sector. The facility allows both public and private sector clients to manage waste and achieve their regulatory objectives under the Waste (Scotland) Regulations 2012 in line with Scotland’s “Zero Waste Plan”.
[3] The Linwood Site is bisected by an overhead electricity line running in an east/west direction. The Interested Party, SP Transmission plc (“SPT”), is the owner and operator of the electricity transmission network in central and southern Scotland and is a licence holder for the purposes of the 1989 Act. The line forms part of the Elderslie to Johnstone 132kV overhead power line known as the AU Route. The overhead line is supported by a lattice steel tower identified by the alphanumeric AU005. The tower is located within the Linwood Site, close to its eastern boundary. The conductors of both circuits of the overhead line overhang an area of the Site used for wood recycling. They also overhang an area of the Site which has been identified by the petitioner as suitable for the manufacture of refuse derived fuel and the construction of a connected biomass waste-to-energy facility. In normal conditions the height of the cables across the Site varies between 9.5 and 14 m above the ground, though the petitioner says that at extremes of temperature and load the cables are prone to sag. The statutory minimum clearance for such cables is 6.7 m above the ground. The presence of the overhead line, the tower and associated apparatus (collectively “the apparatus”) has a significant adverse impact on the petitioner’s use of the Site. There may be some disagreement about the character and extent of that adverse impact but I need not go into that in any detail for present purposes.
[4] The Linwood Site was purchased by the William Tracey Private Pension Fund (“the Pension Fund”) in or around 1998. At that time the petitioner entered into a lease of the Site from the Pension Fund. Since then the petitioner has been in possession of the Site. On 3 April 2006 the petitioner purchased the Site from the Pension Fund. Its newly acquired title was registered in the Land Register on 13 April 2006. The Linwood Site remains in the petitioner’s ownership and under its occupation.
[5] In 1998, when the petitioner first took possession of the Site, the apparatus was already in situ. There had been a wayleave agreement in place between the owner of the Site and Scottish Power plc (the then owner, operator and licence holder of and in respect of the apparatus). That express wayleave agreement came to an end on the acquisition of the Site by the Pension Fund and its occupation by the petitioner. Thereafter there was no express written or oral wayleave agreement in place in respect of the apparatus between the Pension Fund, the petitioner, Scottish Power plc or SPT (who succeeded to the responsibilities of Scottish Power plc). The apparatus remained in situ, its position being governed by the terms of the 1989 Act (see below).
[6] During the course of 2005, and subsequently, SPT requested a wayleave from the petitioner but that request was declined. I was told by Mr Gale QC, who appeared for the petitioner, that the petitioner’s preference was for the pylon to be removed whereas SPT wanted it to remain. Following protracted discussions between the parties, agents for the petitioner wrote to SPT on 8 December 2010 requiring the removal of the apparatus from the Site within three months from the date of the letter. It is now a matter of agreement that that letter amounted to a notice of removal in accordance with paragraph 8 of schedule 4 to the 1989 Act.
[7] On 3 March 2011 SPT applied to Scottish Ministers for a necessary wayleave in terms of paragraph 6 of schedule 4 to the 1989 Act. (In June 2012 SPT made a further application for a necessary wayleave in respect of an area of ground not thought to be covered by their previous application, but the two applications were dealt with together and nothing now turns on this.) The petitioner intimated that it wished to be heard in relation to the application. A Reporter was appointed to hear parties and produce a Report. After sundry drawn out procedure, during the course of which the process was sisted for significant periods, the matter came to a hearing before the Reporter on 19 December 2013 and 30 January 2014. By this stage the petitioner and SPT had entered into an agreement which provided for the removal of the apparatus from the Site and had also agreed that a wayleave was required to allow for matters in the agreement to be addressed. However, the parties had not reached agreement on the terms of the wayleave, and specifically from the date from which the necessary wayleaves ought to be granted. The petitioners argued that it ought to be granted retrospectively, from the date of the application, whilst SPT argued that it could only be granted prospectively, from the date of signature of the grant. This became the matter in controversy between them.
[8] On 2 April 2014, the Reporter submitted his report to Scottish Ministers. The Scottish Ministers granted a necessary wayleave on 13 August 2014 on terms and subject to conditions set out in an attachment to their letter of that date. Critically, so far as this dispute is concerned, the Scottish Ministers specified that the wayleave was to be in force from the date it was signed because “there is nothing in Schedule 4 to the 1989 Act which would allow them to grant a wayleave which had effect from a date earlier than the date of their decision.”
The statutory framework
[9] The powers and duties of licence holders such as SPT are set out in sections 9 and 10 of the 1989 Act. In terms of section 9, a licence holder is under a duty “to develop and maintain an efficient, co-ordinated and economical system of electricity transmission”. 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 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 paras 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 or in the land on the licence holder. It does not bind a singular successor as the owner or occupier of the land.”
[10] It is necessary to look more closely at the provisions of paras 6, 7 and 8 of schedule 4 to the 1989 Act, which is headed “Other Powers etc of Licence Holders” and applies by virtue of section 10(1) of the Act.
“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 install 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)...
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