Wayleave consent: an interview with Georgina Rudak

Trenches Law News   •   May 4th 2021

Recently, Kieran Nee, editor of Professional Housebuilder & Property Developer, quizzed head of wayleave at Trenches Law – Georgina Rudak – on everything concerning wayleave consent. If you missed the article, catch it in full here…

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. Are there particular areas that are prone to wayleave agreements? For instance the countryside?

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. Publicly maintainable land and highways don’t need wayleave consent.

  1. 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.

  1. Is there anything else you would like to add?

When developers are looking at an area to build on, collaboration with operators is key. With the right partnership and legal advice in place, underground work can be done beforehand, and the installation of any equipment can be agreed early doors – meaning that everything looks how they want it to.

Overall, if you’re building a development and can say your homes have full fibre connectivity access, that’s a huge selling point – particularly now that there is an increased requirement to work from home.