PHPD’s Kieran Nee finds out more about Wayleave Consent from Georgina Rudak, Head of Wayleave at Trenches Law.

Could you explain to readers what ‘Wayleave Consent’ is?
This is written permission granted by landowners for telecoms providers to install equipment on private land such as telegraph poles and cables or ducting and fibre.

Why is it important?
If they are an operator – and have code powers (via The Electronic Communications Code) – there’s a legal requirement for them to obtain a wayleave. Ultimately, this agreement is vital when you think that up to 30% of properties – in an average build project – require this consent.

Does wayleave consent affect every property? How do you know if your land is affected?
It concerns privately-owned property, so it doesn’t affect publicly maintainable land and highways. Sellers should declare if an agreement is in place as this also binds successors.

What are the implications for homeowners whose properties are subject to a wayleave agreement?
If a build requires an operator to cross someone else’s land to build, they will get in touch with the landowner or developer to obtain a wayleave so they can progress with the installation.

These agreements tend to be well structured and balanced, but it is a niche area of expertise that many owners might not know about. So, to ensure everything is done legally, it’s best practice to work alongside the operator and get the consent in place as soon as possible.

What should developers be aware of when it comes to wayleave consent?
It comes back to how I would always advise developers to liaise with operators from the very beginning. This is especially important if there’s any underground work that’s required because when everything is in place, this work can be carried out before roads have been fully resurfaced and homes have been built – meaning properties are connected straight away.

Are there particular areas that are prone to wayleave agreements?
Yes. As rural areas tend to have more private roads and farmland, there is a greater requirement here for wayleave consent to allow operators to reach as many homes and businesses as possible. So, it’s crucial for the owners to understand how they can help operators access land to build their networks so that they – and their neighbours – can benefit from the best possible broadband speeds. 

What can property developers do about any unwanted impositions resulting from a wayleave agreement?
If it comes to a point where a landowner disagrees with clauses within a wayleave agreement, I’d advise that they work in conjunction with operators to come to a mutually agreeable solution. There has been a lot of work carried out across the sector to help bring this partnership together.

The majority of wayleaves are fairly industry-standard now and follow a recognised structure, but there is the option to allow reasonable negotiation to take place.

With the government committing to delivering a minimum of 85% gigabit-capable coverage by 2025, landowners have to give permission in order to successfully roll out these plans.

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Bill Bidder, a Partner and Head of IBB Solicitor’s Real Estate Practice explains how to implement planning permission.

A planning permission has a time limit, so you must begin development within a fixed period from the date of the permission: in effect, ‘use it or lose it’.

What counts as ‘beginning development’?
Under Section 56 of the Town and Country Planning Act 1990 (“Planning Act”), a development is “taken to have begun on the earliest date on which any material operation comprised in the development begins to be carried out”.

What constitutes a ‘material operation’ is detailed further in the Planning Act at Section 56(4) – this is widely drafted and includes any construction or demolition works, digging trenches for foundations, laying underground mains or pipes, any operation in the course of laying out or constructing a road, and any material change of use in the land.

So I can just dig some trenches?
If your planning permission is about to expire, you would not be able to simply go onto the site, carry out some minor works and claim that you had begun development. In order for implementation under Section 56 of the Planning Act to be valid, you must also have satisfied all of the pre-commencement conditions in the planning permission.

You should keep a written record of the satisfaction of these conditions – any purchaser or funder would want confirmation that the planning permission was carried out lawfully, within the time limits and having satisfied all the relevant conditions.

Does this also trigger planning obligations?
If there is a Section 106 Agreement, then this is likely to have a different definition of what counts as ‘commencing development’, as this is usually a trigger for planning obligations (such as payment of financial contributions). There is also likely to be an obligation to inform the local planning authority before you start works on site.

What counts as ‘commencement’ under a planning agreement is not laid down by statute but will be subject to negotiation and the requirements of the local planning authority. It will usually refer to the Planning Act but exclude preliminary operations such as demolition, site clearance and construction access.

What about CIL?
The Community Infrastructure Levy Regulations 2010 have the same definition as the Planning Act as to what counts as beginning a development (where the planning permission is new and not a renewal).

Before starting a development subject to CIL you must submit a Commencement Notice (which must be in the prescribed form) to the relevant local authority. Under Regulation 67 this must be submitted no later than the day before you begin development. If you do not serve a Commencement Notice or do not serve one in time, then:
• the local authority will decide the date on which it deems development to have started;
• you will be required to pay a surcharge for invalid commencement of up to £2,500; and
• most importantly, you will lose any CIL exemptions.

The latter could prove to be expensive – there have been a number of recent cases where self-builders have lost their CIL exemptions due to a failure to serve a valid Commencement Notice in the prescribed form, despite informing the local authority of the intent to start building.

Tick all the boxes
In summary, make sure that you:
• know the deadline for implementing the planning permission;
• comply with all the pre-commencement conditions before doing anything on site;
• notify the local authority in accordance with any planning agreement; and
• if CIL is payable, serve a Commencement Notice in time and in the proper form.

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