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Wayleaves etc., Part 2

vivienz

Entry posted by vivienz

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If there's one thing that really gets my back up, it's someone trying to bully or intimidate me.  It rarely works, it just makes me angry.

 

If you've been following this blog, you may recall a post some time back in August concerning the high voltage power lines that oversail my plot, sadly very close to our new house.  They do, in fact, just about cross directly over the very furthest corner of the garage.  Now whilst these lines do not supply my new house and there is no equipment actually on my land, their proximity to the garage means that they are below a safe working distance, according to the regulations of the DNO, who is SSEPD in my area.

 

I had a meeting with the local wayleave officer, let's call him AJ, on 14th August to discuss the situation and how to resolve matters.  From the outset, I have stated that I have no issue with the oversailing lines and I'm not asking the DNO to remove them or do anything drastic, I would just like them to be made safe.  AJ had a long look around the plot and came up with a rather complex proposal to bury the cables, via a somewhat convoluted route, digging up the lane and digging on the land of 3 different owners.  The local linesman came out and had a look a few days later and suggested that the existing poles could simply be replaced by taller ones that would lift the cables up high enough to give safe clearance underneath them.

 

The DNO has issued me with quotes for both sets of work, both expensive, one slightly less so.  The lesser of the two evils, raising the poles up, comes to the princely sum of £7,600 + VAT, so not much change out of £9k when all's said and done.  If I accept, the raising of the pole height will take some time: the new poles would be more than 10% greater in height than the old ones and so the DNO requires planning approval for this.  Then, it seems, they have to put some other sort of submission to another official body that will take another few months, so all told, it will be well into next year before anything happens, if it does.

 

This is the basic outline of what passed.  What I haven't mentioned yet is the attitude and approach of AJ in all of this, which is what provoked my opening statement.  From the very first telephone conversation that we had back at the beginning of August, he has been highly combative in a passive aggressive kind of way.  So, no raising of voices, but very much a 'we're bigger than you and you will do as we say' style.  This came to a head on Tuesday evening when AJ rang me at 5.10pm to discuss the quotes that had been sent through.  In fact, what he actually wanted to do was rattle my cage because 30 minutes before his call, the local linesman had rung me to discuss the dates for burying my supply cable and had clearly been in the same office, chatting to AJ and saying that the garage had already been constructed.

 

AJ laid it on pretty thick.  He said that SSEPD would 'make a contribution' towards the cost of increasing the height of the oversailing lines, and he clearly expected me to be grateful.  They were offering to pay 25% of the cost (no VAT to charge to themselves), i.e. in the region of £1,500, but in exchange for this, they wanted an easement.  Just as a refresher, the wayleave on my property currently is a voluntary one which I can serve notice on.  An easement is a right in perpetuity, well beyond my lifetime, lodged against the deeds of the property.

 

As with all AJ's conversations, there were lots of long and deliberate pauses of the type that some idiots use when they think they are masters of manipulation and want to make the other party feel uncomfortable and force them into filling the silence.  I shan't quote chapter and verse on it because it's far too tedious but suffice it to say, he really pissed me off and to the extent that I sent a forthright email to him later that night summarising what he had said and how he had said it.  I also requested that he no longer contacted me by phone, but put everything in writing (email) so that I would have an audit trail. 

 

Now, it may be that this gets me no further, but I have received a request from AJ's boss this afternoon, requesting a meeting to discuss the points I have raised.  I have said that I will meet her, but I want to know in advance exactly what points she wants to discuss and how this will move things on.  We shall see.  In the meantime, for the record, here's the email I sent that gives more detail on what annoyed me so much.

 

"Dear AJ

Further to our telephone conversation late this afternoon, I feel that I need to email with my comments regarding this and my planned actions as a consequence, since I have been left very troubled by both your comments and your tone.

When we first met on site on 14th August, I explained to you that throughout the entire process of building my new house, I have used and relied upon professionals and have sought to do everything correctly and legally, as far as I have been able.  To this end, the house was designed by a qualified architect who chose the location of the building on the site according to a topographical survey that was produced by a firm of chartered surveyors.  Once the build was ready to commence, setting out of the building on site was again carried out by a chartered surveyor and there was no change from the original plans as detailed in the approved planning permission.

Unfortunately, it later became evident that the north east corner of the garage of the new house is directly under the power lines that oversail but which do not supply my property .  However, I did not realise that these were high tension lines until my scaffolder contacted SSE to establish what type of lines these were and their nature then became clear.  As a result, I have made all contractors who have come on site aware of these power lines.

The builder who constructed my house and garage was completely aware of the high tension lines and proceeded with the construction of the garage on a day when I wasn’t on site.  I am told, however, that this was all done from floor level and inside the garage.  Indeed, it is clear that it could not have been achieved in any other way, since there is no scaffolding around the garage to facilitate its construction from the outside.  I can confirm that the timber frame of the garage has been completed, but the flat roof surface has not been put on it and I have advised my flat roofer that this is not to be done until such time as it can be completed safely.  I have no desire to see anyone injured as a result of working on my site, whether it is due to ignorance or carelessness, and I deeply resent any assertion to the contrary.  If I wish to take a risk with my own safety, I am free to do so, but I would not deliberately endanger others.

As evidenced by my approach to this build, at no point have I tried to cut corners or take any risks.  I have also engaged with you in a co-operative, straight forward and positive manner during our meeting and our conversations.  Regrettably, I cannot say the same for you or your approach.

I understand that you are paid to represent the interests of your company and, thus, your company’s shareholders.  I also understand that a DNO has a public duty to ensure continuing and safe supply of electricity to its customers and have never disputed this, but I find your assertion that my seeking adequate financial compensation for SSE to have permanent rights over my property in the form of an easement will somehow increase everyone’s electricity bill to be an insulting one.  Any charges paid by me to SSE are taken into the business as a whole which pays profits to its shareholders by way of distributing electricity and each DNO has an effective monopoly over its distribution area, so I have no choice in whom I deal with.

The wayleave that exists over my property is a very old one, dating back to the 1950s, and it is a voluntary wayleave agreement.  My husband and I have owned this property since February 2017 and have never received any compensation due through this wayleave, although this would be an insignificant sum, in any event.  I understand from the previous owner of the property that no payments have been received in respect of the wayleave as far as they are aware.  The wayleave grants permission to the DNO to place its equipment on or over my land and I have no desire to have SSE remove its equipment from my property and have stated this since the outset of our discussions.  I have also stated my willingness to offer SSE a far more secure tenure in the form of an easement which gives rights in perpetuity rather than on a voluntary basis as is the current situation.  Given the longevity of an easement, its nature is very different from a wayleave, as you know, and despite your assertions to the contrary, it is a valuable difference to the property owner.

You kept referring back to the fact that the original wayleave is very old and that the equipment has been in situ for a long time, thus the financial impact on my property is negligible.  I do not agree with this statement.  It may have been true when the wayleave was first set up but that was over 60 years ago and property values have increased considerably in that time, particularly residential ones.  The direct consequence of the oversailing wires is my inability to fully use and enjoy my property, as is my legal right; were the wires not oversailing my property, this would not be the case and I would be free to develop it as I choose.  Therefore, there is a direct financial loss to me as a result of your company’s equipment passing over my land. 

One solution that has been put forward to remove the danger posed by your equipment passing over my land is to increase the height of the existing poles so that the clearance between a person standing on my garage and the overhead lines is greater than the required safe distance.  This seems like a very sensible solution and one with which I am in agreement.  On 22 August SSE quoted a cost of £7,231.45 + VAT, a total of £8,677.74.  I have researched the amount of compensation a property owner might reasonably expect to receive for granting permanent rights to their property by way of an easement to a DNO and I am advised that these are typically between 1% and 2% of the property value, when negotiated by parties familiar with this process.  Based on a reasonable estimate, my property is conservatively valued at in the region of £800,000, thus giving a minimum expectation of £8,000 of compensation for granting an easement.  You today stated that SSE are prepared to contribute 25% of the cost of increasing the pole height for the overhead lines, i.e. £1,807.86 since SSE will not need to charge themselves VAT on the cost of any works.  I also doubt whether the quote provided to me is at cost to SSE and there will be a margin of profit in that so, in effect, the true cost to SSE of this contribution is far below 25% of the cost to me.  I believe that this valuation of permanent rights over my property is an extremely poor offer and not one that I am prepared to accept.

In the interests of overcoming the issue of SSE’s equipment over my land, I have not sought to profit from the matter in any way; I have only sought to reach a fair and equitable solution and have dealt with you in a very transparent and fair manner.  Indeed, I have already agreed to pay the charges for re-routing the power supply to my house and have no issue with this, since it is of direct benefit to me.  On the other hand, you, on behalf of your employer, have been guarded and done all that you can to avoid straight answers, instead almost treating the process as though it is a game of poker where he who bluffs the best, gets the best deal.  This has included difficult telephone conversations where you deliberately insert long, awkward silences presumably in an attempt to make me feel ill at ease or intimidated, and this has been the case in every conversation I have had with you.  In addition to this, you constantly allude to issuing notices and starting other processes, without any explanation of what these are or what the outcome of them is, instead leaving these veiled threats hanging until I continually had to press you for answers to them.  When you do finally explain what these other actions are, it seemed to be a circular argument that brings us back to where we began in the conversation and no further forward.  Your rang me at 5.10pm this evening and our conversation lasted 37 minutes, in which time all your main objective seemed to be to attempt to intimidate me into accepting the above financial offer, otherwise you would serve me with legal notices and generally make things difficult for me to progress my house build. 

 

For the record, I do not appreciate attempts to bully me, no matter how passive aggressive they are, and I think that it is disgraceful behaviour.  It has also made me re-think my approach to this situation, since being transparent and fair does not seem to have produced any meaningful progress.  Towards the end of our conversation, you stated that you want to continue our dialogue and see if we can reach a resolution.  This, however, is not a poker game for me nor is it an enjoyable sport of seeing who will blink first and give in to the other’s proposal.  As a result, I have no wish to continue any conversations with you since I feel it is a very stressful waste of my time.  Therefore, unless you are prepared to deal with matters in a clear and straightforward way, next week I shall issue formal notice to SSE of withdrawal of the wayleave on our property.  Once this is done, I shall instruct a firm of chartered surveyors experienced in negotiating financial compensation agreements with DNOs for the grant of wayleaves and easements and I feel confident that will, in due course, more than adequately cover the costs of any work to the oversailing wires.

Please contact me via email only from now on as I want to have a permanent record of precisely how you respond to me."

 

 

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Hecateh

Love it  concise and succinct with nothing remotely unprofessional unprofessionional.  Stay strong!!!! You are definitely in the right

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ProDave

I would not have been so patient. I would have served notice to quit under the existing voluntary agreement. They might have been more willing to enter a sensible dialogue.

  • Like 2
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vivienz
4 minutes ago, Onoff said:

Email them prior to it telling them you'll be recording the meeting.

 

Already planning to do that, but thanks for the tip.  I don't trust them an inch.

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Onoff
10 minutes ago, vivienz said:

 

Already planning to do that, but thanks for the tip.  I don't trust them an inch.

 

I was going to suggest you say "I'll be recording the meeting in the absence of an agenda" but maybe best to just go in and hear what they have to say. Don't agree to anything until you've had time to mull it over. Teaching you to suck eggs probably! 

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newhome
1 hour ago, PeterW said:

Someone is about to get an arse kicking from his boss ....

 

 

TBH it's rare that a boss doesn't know the type of people they have in their team so I doubt that this will come as a surprise to her. It just begs the question of whether the boss knew that this individual would act in this way and endorsed it, or even encouraged it. When I pick someone to go into bat at work I pick the person who I feel can handle the situation to create the right outcome. I very much doubt that this individual has acted out of character here thus leading me to believe that the company fully endorsed his approach even if they later claim that they didn't. Their mistake was to misjudge @vivienz. 

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Nickfromwales

I think id be asking them to remove the wires chop chop. DNO's are a law unto themselves and constantly dictate to and piss on 'the little people'.

FYI the pikies use 4' lengths of heavy gauge chain to drop OH lines so they can nick the copper. They swing it furiously whilst standing directly under the lines and then fling it upwards whilst its still spinning. 

Wrap > flash > loud bang > £300 worth of scrap :D 

 

Kick some ass ;) in a lady-like fashion of course. 

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newhome
5 minutes ago, Nickfromwales said:

I think id be asking them to remove the wires chop chop

 

Don't they have some shitty power to apply to make it a compulsory Wayleave if it suits them though if you tell them to get shot of it? I think the more reasoned approach may be better for the time being. At least they can't then say that @vivienz was unwilling to negotiate if it doesn't resolve. 

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Triassic

Why you even paying for this work, I have cables oversailing my site and the DNO installed taller poles free of charge to me.

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Ferdinand

On my iPAD your email displays in copperplate!

 

I somewhat disagree with others on the thread. I hope that I am wrong on these points, and welcome contradiction.

 

ISTM that paragraphs 2 and 3 of your email is probably an admission that the potentially unsafe (safety margins etc) situation has been created by the actions and omissions of the highly qualified professionals you employed, who should have known better, and that therefore insufficient investigation had been carried out wrt the nature and location of the lines oversailing your plot to make sure you could complete your development safely. The proof is that if these had all been done effectively, there would be no risk of being too close to the wire, and the house would be in a slightly different place. 

 

Therefore the DNO could argue that any action to mitigate the risk is your responsibility not theirs, and that any recourse for you is against your surveyor and architect not the DNO, since the actions of the DNO did not create the present situation.

 

I can't see any defences against that argument, unless there was some admission or omission in their response to the Planning Application, if they were consulted. But presumably they would argue that they relied on your professional survey.

 

Were I them and my interpretation correct, I would probably expect you to come up with and pay for implementing a solution - either doing something with the wire or something to your house. If the offer was on a 'without admission of fault' bases, I might withdraw it in those circumstances.

 

Notwithstanding any notice to move equipment etc, for the longer term they could apply for a Necessary / Statutory Wayleave (whichever is the correct term now). That is not a process with which I am familiar, but in the case of an HT line to a large number of people I would perhaps expect them to succeed.

 

(Personally I wonder whether the maximum offer they may make would be a little less than the estimated cost of getting a statutory wayleave.)

 

If they choose to play it by the book (ie hardball), in the shorter term (ie now) they *may* be able to ask the Local Council to apply a Stop Notice or a requirement not to build whatever parts would be close to the HT wire, for reasons of safety or security of supply until such time as a solution is in place, particularly given your statement that your workers continued working. That would presumably be after serving some sort of notice on you requiring a solution, and escalating if they felt the response was not adequate.

 

Or they may have such a power themselves, or be able to ask the HSE.

 

For these reasons I do not think your legal or practical position is especially strong, and I think that this indicates that it should be played softly.

 

Personally, I would suggest withdrawing this email if you can, and talking to that firm of Chartered Surveyors before resending. If you have already taken professional advice and my points above are wrong, please say - since I am not a lawyer, and this entire post is just my opinion not advice.

 

Wishing you success.

 

Ferdinand

 

 

 

Edited by Ferdinand
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vivienz

Hmm. Yes, food for thought, thanks Ferdinand, and I admit that behind my ire this had popped into my thoughts.

 

The email has gone and can't be withdrawn so that's where the situation lies right now. I actually have no objection to reaching a negotiated settlement with the DNO and I'm still aiming for that. I also suspect that's where it will end up. However, the approach of the wayleave officer has been such that he is not a person who seems able to negotiate in a reasonable manner, which was the essence of my complaint and doesn't change, regardless of anyone's legal position.

I plan to give his boss a call today and arrange a meeting as I don't want to waste more time on unnecessary and unproductive arguments over something that can, in principle, be easily agreed.

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Ferdinand
7 minutes ago, vivienz said:

Hmm. Yes, food for thought, thanks Ferdinand, and I admit that behind my ire this had popped into my thoughts.

 

The email has gone and can't be withdrawn so that's where the situation lies right now. I actually have no objection to reaching a negotiated settlement with the DNO and I'm still aiming for that. I also suspect that's where it will end up. However, the approach of the wayleave officer has been such that he is not a person who seems able to negotiate in a reasonable manner, which was the essence of my complaint and doesn't change, regardless of anyone's legal position.

I plan to give his boss a call today and arrange a meeting as I don't want to waste more time on unnecessary and unproductive arguments over something that can, in principle, be easily agreed.

 

As I say - best of luck.

 

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MarkyP

There is a specialist UK firm where one of the surveyors has written a book on the murky topic of electricity wayleaves. I got a second hand copy for a quid (I have a couple of poles on my land which I want moved) and it's very informative. It's also an excellent cure for insomnia.

 

Search for "Charles Hamer Wayleaves" and you'll find it.

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Gone West

Excellent! On two separate occasions I have simply told the DNO to move the oversailing cables. Once was after finding the wayleave agreement and claiming the back payments, as none had been paid for years.

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jamieled

As @newhome suggests the DNO can apply for a compulsory wayleave/deed but the cost to them of doing this is not usually insignificant and hence they will tend to avoid doing it if possible.

For what it's worth we're dealing with a wayleave with SSE (not for the house build) and have sought some help with it as it was getting far too complicated. In some circumstances the DNO are obliged to pay the cost of professional fees of a surveyor/negotiator so worth looking into that.

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Tyke2

If the wayleave is voluntary and there is provision to terminate this agreement and serve notice for them to remove the over sailing equipment, why don't you just serve notice?

If they then apply for a compulsory deed etc, they will have to compensate you for loss of value of your property and pay your reasonable fees I would have thought.

@Ferdinand is wholly correct in my view. The professionals including your lawyer when you bought the property, and architect should have identified the obstructions and advised you accordingly.

 

I had a similar situation with powergen a few years ago on a site, There was an easement for overhead lines 33kv if I remember correctly. Usually they have you over a barrel and you have to pay the costs of diverting them. But on this occasion the legal agreement had a lift and shift clause, where on notice, they had 3 months to remove them from the site. Straight away Powergen advised us that it would cost us £250k and take 12 months, until I produced the legal agreement. They said it was impossible due to their network agreements etc to divert them in 3 months. I just pointed them to the agreement and advised them to begin working up a compensation package for our losses. They started treating us with a little more respect then.

 

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Ferdinand

@vivienz

 

(Note: If anything I am overcautious in these matters. Apply pinches of salt as you feel appropriate.)

 

My apologies if this reads scarily, but the situation you have seems to me to have potential to go several ways. Again, this is just my opinion and I welcome contradiction by people who know better. Like my other post, this one is more hedged around with caveats than Hampton Court Maze.

 

(Aside - the correct way of course, would have been for your architect to have flagged it up and dealt with it before even applying for PP, or buying the plot).

 

Something which had not been mentioned afaics and only touched on to by me - is your site a safe working environment, and where does responsibility lie if it is not, and can eg the HSE attend and stop your development in its tracks whilst measures are put in place to "control the risk" from the HT wire? And who is responsible were there to be an accident?

 

There are whole procedure manuals about working safely around oversailing wires, which involve things like fencing them off from access etc. Much material is on the HSE website.

 

I do not know the answer to that since it is very dependent on your individual project and how you run it.

 

Crucial point: Who is responsible for the H&S on your site. If you are contracted with a PM or architect for supervision throughout then they may have the "Principal Designer" role, and be responsible for safe working practices wrt the HT wire. 

 

But if you are supervising the build yourself with some *involvement* in *how* things are done and directing work, then you are by that action asserting that you have expertise and taking on responsibility yourself. If you have not taken on that responsibility (ie demonstrated throughout your ignorance about the practicalities of building things) then your role is termed "Domestic Client", and it is accepted that your responsibility is limited.

 

That is all somewhat elucidated in this summary post by @recoveringacademic.

 

I raise this because the email in the post may mean that you have stuck your neck out (said the giraffe) and put yourself on the radar. For all I know there may be a procedure inside the DNO where they report potentially unsafe working environments they meet to the HSE, who could potentially appear and demand that proceedings on your site stop until the perceived hazard is removed. Though I would guess that they can have the discretion to deal with it more flexibly (eg "fence off a 10m corridor each side of the wire and get a consultant to brief all your contractors about managing the risk"), and perhaps a procedure requiring their interventions to be as small as practicable, and it is all about judgement calls anyway. Given that you have had a pretty good go at them, they could choose not to use any discretion. TBH, if I had received such an email about my staff, I would be playing all aspects strictly by the book simply for cover in case there were to be scrutiny later.

 

Though they likely have a duty or a procedure to keep costs minimal - however if you get into closing roads, shutting off electricity supplies to umpteen people who all have to be leafletted in advance, and cherrypickers, and half a dozen people on site, it could be 10s of k. When I had a big tree on a big road removed it was 3k for a single day job. 

 

And since iirc it is a matter of 3 or 12 months notice to get the wire moved (according to your Wayleave), then that could be your project in the deep freeze for a chunk of time, or an even more substantial bill for emergency action to be faced than the quote you have already received. 

 

And the HSE deal in offences and fines and charges as well as warnings and notices; they may not pussyfoot if they get involved. Clearly were there to be an accident, it is all that many times more serious.

 

This could be unlikely, but it is possible. Both areas - Wayleaves and HSE responsibility - are rather grey and smudgy.

 

My suggestion would be to get some professional advice between now and Friday, including possible scenarios and how you should be prepared to react in each case. I think you need a roadmap of where you are in terms of the DNO and the H&S aspects. That advice could be anything from a 20 minute informal phone call to a 2 hour meeting.

 

Edited by Ferdinand
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PeterW

I think the only part affected is the garage so unlikely that HSE would wrap the whole project up with a stop notice as nothing dangerous has occurred (ie no reportable accident or near miss) so it’s unlikely the would be involved. 

 

Would also be interesting to see where the plans show the cables for the DNO and where they actually are. We have some woodland and had an extensive site survey done with GPS and found the poles for the farm power lines were 6m out and when we checked we found existence of the old line but the wayleave and DNO asset maps hadn’t been updated. 

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