Electricity wayleave — Grant — Meaning of “land” — Application for wayleave to install cables in service tunnel under dockland water — Para 6 of Schedule 4 to Electricity Act 1989 — Power to grant wayleaves on, under or over any land — Whether “land” having wide meaning in Interpretation Act 1978 — Whether service tunnel “land”
The claimant was the owner of a dock estate on the Isle of Dogs, London E14. Under section 105 of the Transport Act 1968, it had a statutory duty to maintain waterways in a suitable condition for use by relevant vessels or craft. The claimant’s estate included a cutting between two docks that was spanned by a bascule bridge. A service tunnel ran beneath the cutting, within which electricity cables had been laid. The first defendant electricity company was a licence holder within the meaning of the Electricity Act 1989. It had asked the claimant for a wayleave to lay an additional electricity cable in the service tunnel. This had been refused. It subsequently applied to the second defendant, the Secretary of State for Trade and Industry, for the compulsory conferment of a wayleave pursuant to para 6(3) of Schedule 4 to the 1989 Act: a wayleave can be granted in order for a licence holder to install, and keep installed, an electricity line on, under or over any “land”.
The claimant then issued proceedings, claiming that “land”, as contained in para 6 of Schedule 4, could not have its normal meaning, such as that provided by section 5 of, and Schedule 1 to, the Interpretation Act 1978, of comprehending anything and everything attached to it. Hence, the service tunnel could not constitute “land”, and a wayleave could not therefore be granted in respect of it.
Held: The Secretary of State possessed the power, under para 6(3) of Schedule 4 to the 1989 Act, to grant to the electricity company a wayleave entitling it to install electricity cables within the tunnel. The 1989 Act contained nothing to indicate a contrary intention in relation to the meaning of “land” as defined by the Interpretation Act 1978. The Schedule 4 compensation scheme allowed for parties to agree the grant of a wayleave, which might be through a service tunnel, leaving the compensation to be determined by the Lands Tribunal. Schedule 4 also conferred upon the Secretary of State a discretion in relation to the grant of a wayleave. The existence of both the discretion and the right to compensation undermined the hypothesis advanced by the claimant that “land” did not include the service tunnel.
The following cases are referred to in this report.
Elitestone Ltd v Morris [1997] 1 WLR 687; [1997] 1 All ER 513; [1997] 2 EGLR 115; [1997] 27 EG 116
Payne (Inspector of Taxes) v Barratt Developments (Luton) Ltd [1985] 1 WLR 1; [1985] 1 All ER 257; [1985] RVR 156, HL
Starke v Commissioners of Inland Revenue [1995] 1 WLR 1439; [1996] 1 All ER 622; [1996] 1 EGLR 157; [1996] 16 EG 115, CA
This was a claim for declaratory relief by the claimant, British Waterways Board, against the first and second defendants, London Power Networks plc and the Secretary of State for Trade and Industry respectively.
Joseph Harper QC (instructed by Eversheds) appeared for the claimant; Guy Roots QC (instructed by Lewis Silkin) appeared for the first defendant; Timothy Mould (instructed by the Treasury Solicitor) represented the second defendant.
Giving judgment, Sir Andrew Morritt V-C said:
[1] The issue for my determination is whether the power conferred upon the second defendant (the Secretary of State) by para 6(3) of Schedule 4 to the Electricity Act 1989 enables him to grant to the first defendant, London Power Networks plc (LPN), a wayleave entitling it to install and maintain in the services tunnel owned by the claimant, British Waterways Board (BWB), which runs under Millwall Cutting, Marsh Wall, London E14, four cables for the transmission of electricity, and associated telephone and signalling cables. LPN and the Secretary of State invite me to give an affirmative answer. BWB contends for a response in the negative.
[2] The area in question is on the Isle of Dogs. It lies within the Docklands urban development area and enterprise zone, formerly managed by the London Docklands Development Corporation (LDDC). LDDC was concerned to provide the necessary infrastructure for the regeneration of the area by the sale of serviced sites. This involved, among much else, the construction of roads and the laying of electricity cables.
[3] One such road was Marsh Wall. It runs in an east/west direction to the south of the West India Docks. It crosses the water-filled cutting between the West India Docks Main Section and Millwall Inner Dock. At that point, a new bascule bridge was provided, with service tunnels to the north and south of the bridge. Each tunnel consists of two vertical access shafts, around 14.5m deep, to the east and west of the cutting, connecting to a horizontal tunnel, with a diameter of 1.8m, running underneath the cutting. Electricity cables were laid in ducts running under the street surface of Marsh Wall and through the northern tunnel under the cutting.
[4] At the time when Marsh Wall and the service tunnels were constructed, the supplier of electricity to the area was the London Electricity Board (LEB). In March 1990, the rights and liabilities of LEB were transferred to London Electricity plc, pursuant to the Electricity Act 1989. LPN is a wholly owned subsidiary of London Electricity plc and the holder of a licence from the Secretary of State, dated 1 October 2001, for the regulated distribution of electricity in the area.
[5] BWB was constituted by, and pursuant to, the Transport Act 1968. Its duty, imposed by section 105, is to maintain waterways in a suitable condition for use by relevant vessels or craft. By a transfer dated 10 October 1997, LDDC transferred to BWB its dock estate, including Marsh Wall and Millwall Cutting. On 20 November 1997, BWB was registered as the proprietor thereof under title no EGL 365504.
[6] In April 2001, LPN commenced work, laying further electricity cables along Marsh Wall by which to supply electricity to new customers. The work stopped at the bascule bridge on 29 May 2001 because BWB intervened to prevent an inspection of the service tunnel to the north of the bridge, through which LPN intended to install the cables. LPN’s request to BWB for a wayleave for that purpose, made on 18 January 2002, was refused by BWB on 6 February 2002.
[7] On 5 April 2002, LPN made a further request, and applied to the Secretary of State for the grant of the wayleave sought by LPN pursuant to para 6(3) of Schedule 4 to the Electricity Act 1989. BWB again refused. The Secretary of State initiated the process by which he is required to consider LPN’s application. That procedure was effectively stopped by proceedings commenced by BWB on 18 June 2002. The trial of the issue now before me was directed by Master Bowman on 19 July 2002.
[8] The Electricity Act 1989 was passed to make new provision with respect to the supply of electricity. Such supply is unlawful unless licensed by the Secretary of State: section 4. There are four types of licence: a generation, transmission, distribution and supply licence: section 6. The licence granted to LPN on 1 October 2001 is a distribution licence. Accordingly, it is the duty of LPN |page:112| to develop and maintain an efficient, co-ordinated and economical system: section 9. Separate consent is required from the Secretary of State for the installation and maintenance of overhead lines: section 37. Schedules 3 and 4 confer upon distribution licence holders the powers therein contained, if, and to the extent that, the licence so provides: section 10(1). It is common ground that the licence to LPN does so provide.
[9] Schedule 3 contains powers of compulsory purchase. Paragraphs 1 to 5 of Schedule 4 confer powers to carry out and alter street works in both England and Scotland, for the alteration of such works and for the avoidance of interference with telecommunications. The relevant provision is para 6.
[10] Paragraph 6(1) provides:
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) 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 install 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.
Subparagraph (2) contains a similar provision, enabling the licence holder to keep an electric line.
[11] Subparagraphs (3),(4) and (5) are in the following terms:
(3) Subject to sub-paragraphs (4) and (5) below, the Secretary of State may, on the application of the licence holder, himself grant the necessary wayleave subject to such terms and conditions as he thinks fit; and a necessary wayleave so granted shall, unless previously terminated in accordance with a term contained in the wayleave, continue in force for such period as may be specified in the wayleave.
(4) The Secretary of State shall not entertain an application under sub-paragraph (3) above in any case where —
(a) the land is covered by a dwelling, or will be so covered on the assumption that any planning permission which is in force is acted on; and
(b) the line is to be installed on or over the land.
(5) Before granting the necessary wayleave, the Secretary of State shall afford —
(a) the occupier of the land; and
(b) where the occupier is not also the owner of the land, the owner,
an opportunity of being heard by a person appointed by the Secretary of State.
Subparagraph (8) makes it clear that the expression “dwelling-house” includes its garden and any outhouses or other appurtenances belonging to or usually enjoyed with it.
[12] Paragraph 7, headed “Provisions supplemental to paragraph 6”, deals with compensation. Subparagraph (1) entitles the occupier, and, if different, the owner, to recover from the licence holder compensation in respect of a grant under para 6. By subpara (2), any person interested in land or moveables may recover from the licence holder compensation for any damage caused, or disturbance in his enjoyment thereof, in the exercise of any right conferred by the wayleave. Subparagraph (4) refers any dispute over compensation to the Lands Tribunal, for determination in accordance with the Land Compensation Act 1961.
[13] The word “land” is not defined in the Electricity Act 1989. Accordingly, resort must be had to section 5 of, and Schedule 1 to, the Interpretation Act 1978, which provide that “unless the contrary intention appears”, “‘land’ includes buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land”. It is not disputed that the service tunnels are land within the principles of Elitestone Ltd v Morris [1997] 1 WLR 687* and, in the absence of a contrary intention, fall within this definition of land.
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* Editor’s note: Also reported at [1997] 2 EGLR 115
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[14] The submissions for BWB rely upon what its counsel described as “a bizarre hypothesis”. He submitted that if the word “land” comprehended anything and everything attached to it, then para 6 would authorise the routeing of an electricity supply through conduits in any building (other than one within para 6(4)), such as an office block, because there is no power to control the route chosen by the licence holder. Counsel compared these provisions with provisions in the Telecommunications Act 1984. He submitted that the context warranted a departure from the definition, as exemplified in Payne (Inspector of Taxes) v Barratt Developments (Luton) Ltd [1985] 1 WLR 1 and Starke v Commissioners of Inland Revenue [1995] 1 WLR 1439*. He suggested a number of departures, namely: (1) in the context of the Electricity Act 1989, the word “land” does not include installations or equipment attached to the land; (2) the words “on, under or over… land”, where they appear in para 6(1) and (2) of Schedule 4 to the Electricity Act 1989, do not include “through installations or equipment” on that land; and (3) para 6 of Schedule 4 does not entitle the applicant for a wayleave to stipulate the route across the land to be taken.
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* Editor’s note: Also reported at [1996] 1 EGLR 157
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[15] I do not accept any of these submissions. I do not find any assistance in the provisions of the Electricity Act 1919 or the Telecommunications Act 1984. The former was superseded by the new provisions contained in the Electricity Act 1989. The latter is in different terms, and deals with a different subject matter in a different context. I accept, of course, that the definition of “land” contained in the Interpretation Act 1978 yields to a contrary intention, as shown by the two cases to which I have referred, but I do not find any such intention in the Electricity Act 1989, whether in para 6 of Schedule 4 or elsewhere.
[16] First, the scheme of the Act is to provide compensation, under para 7, for any wayleave granted by consent, under para 6(1) and (2), or by the Secretary of State, under section 6(3). The parties, that is the licence holder and the landowner, might well agree to the grant of a wayleave through a service tunnel but leave the compensation to be determined by the Lands Tribunal. If the circumstances come within para 6(1) or (2), so as to authorise the award of compensation under para 7(1) in the case of agreement, then the same wayleave granted by the Secretary of State must come within para 6(3). In other words, a wayleave for an electricity line through a tunnel, such as the service tunnel in this case, must be in respect of an electric line “on, under or over… land” within all of subparas (1) to (3), or none of them.
[17] Second, the provisions of para 6(4) demonstrate a legislative method by which a category of wayleave is excluded. It is not done by altering the meaning of any part of the phrase “on, under or over… land”, for that would, or might, affect the operation of paras 6(1) and (2) and 7. Had it been intended to exclude wayleaves “through installations or equipment on, under or over any land” then it is to be expected that the same method would have been used.
[18] Third, the “bizarre hypothesis” also does not call for any modification of the composite phrase. Paragraph 6(3) confers a discretion upon the Secretary of State. True, he must be satisfied that “it is necessary or expedient for the licence holder to install” the electric line. In that event, he “may… himself grant the necessary wayleave”. Moreover, he is entitled to impose “such terms and conditions as he thinks fit”. In exercising his discretion, the Secretary of State must balance the interests of the licence holder with those of the owner and occupier to whom he is obliged to afford a hearing under para 6(5). If he concludes that he should refuse the application, the owner and/or occupier can have no cause of complaint. If he grants it, he may impose conditions to ameliorate the effect upon the owner and/or occupier under para 6(3), and compensation will be payable under para 7(1). |page:113| I see nothing bizarre about such a procedure, and certainly nothing to suggest that the word “land”, as used in paras 6 and 7 of Schedule 4, should be given a meaning different to that set out in the Interpretation Act 1978.
[19] Fourth, the procedure envisaged by para 6 necessarily involves the applicant in specifying the route of the wayleave he wants. If he does not, he will not obtain an agreement under para 6(1) or (2), nor will he be able to discharge the onus upon him, in an application under para 6(3), to demonstrate that the wayleave is necessary or expedient. But it does not follow that he will obtain the wayleave so specified. The owner may not agree and the Secretary of State may refuse it. Thus, there is, contrary to the bizarre hypothesis, power to control the route of the wayleave.
[20] In summary, in my view, the existence of both the discretion of the Secretary of State and the right to compensation undermines the “bizarre hypothesis”. In its absence, and in the context of Schedule 4 as a whole, I see no ground for restricting the ambit of the word “land” as defined within the Interpretation Act 1978, or the normal meaning of the phrase “on, under or over… land”, in any of the ways suggested by counsel for BWB.
[21] For these reasons, I will make a declaration to the effect that the power conferred upon the Secretary of State by para 6(3) of Schedule 4 to the Electricity Act 1989 enables him to grant to LPN a wayleave entitling it to install and maintain, in the services tunnel owned by BWB running under Millwall Cutting, Marsh Wall, London E14, to the north of the bascule bridge, four cables for the transmission of electricity and associated telephone and signalling cables.
Declaration accordingly.
