UK Law and Practice Contributed by: Tom Sprange KC, Andrea Stauber, Martina Antosova and Lucy Pearson, King & Spalding International LLP
4.4 Eminent Domain, Condemnation and Expropriation Rights to Construct and Operate Transmission Lines and Associated Facilities Section 37 of the Electricity Act 1989 requires the con- sent of the Secretary of State to install an electric line above ground unless the electric line either: • has a nominal voltage of less than 20 kV and is used for supplying a single customer; or • is within premises either occupied or controlled by the person responsible for the installation. In England and Wales, an overhead electric line with a nominal voltage of 132 kV or more is considered an NSIP. As such, a DCO from the Secretary of State will be required unless a specific exemption applies. Certain transmission works by statutory undertakers may be classified as “permitted developments” under the Town and Country Planning (General Permitted Development) Order 1995, meaning that planning per- mission is not required. A marine licence may be required for the laying of a cable within UK territorial waters. If any electric line passes over or under private land, the consent or agreement of the relevant landowner is also required. A wayleave or easement agreement with the landowner or occupier gives the provider rights to install, access, maintain and repair the pro- vider’s equipment on their land. A wayleave is an annual agreement for which a land- owner and/or occupier receive an annual wayleave payment. The wayleave payment is based on the type and number of assets on the land and its land use. An easement is an agreement that allows the pro- vider permanent rights for the equipment in return for a one-off lump sum payment. It can only be agreed by the landowner (or long-lease holder) and the pro- vider’s rights endure even if the land changes hands. An existing wayleave agreement can be converted to an easement. There are no general eminent domain rights or simi- lar for electricity transmission facilities. However, in
• furnishing information to GEMA as may reasonably be required; • prohibition of cross-subsidies; • restriction on certain activities and financial ring- fencing; • ensuring the availability of resources; • procuring an undertaking from the ultimate control- ler of the licensee; • restriction on indebtedness; • maintaining an Investor Grade Issuer Credit Rating at all times; • complying with the provisions of the Fuel Security Code in respect of transmission in England and Wales and complying with the directions of the Secretary of State under Section 34 and/or 35 of the Energy Act 2004 in respect of transmission in Scotland; • having a System Operator–Transmission Owner Code (STC) in force; • complying with the Regulatory Instructions and Guidance (RIGs) published by GEMA; • developing and maintaining an Electricity Network Innovation Strategy; • complying with any Section E (OFTO of last resort) direction given by GEMA; • doing all such things to give effect to all modifica- tions made by the Secretary of State to the licence, the CUSC or the STC; • notifying GEMA of any changes or circumstances that may affect the licensee’s eligibility for certifica- tion; • having two non-executive directors who meet the criteria set out in Condition B22 of the licence; • complying with the provisions of the Data Assur- ance Guidance; and • the ability of GEMA to make “housekeeping” modi- fications to the licence. Special conditions apply to National Grid Electricity Transmission plc, Scottish Hydro Electric Transmis- sion Plc, and SP Transmission Plc. SLCs in respect of transmission licences may be “switched on” or “switched off” by Ofgem.
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