The Act Overview Wayleave rights Section 72: Variation of network wayleave right
171.A network wayleave right in respect of land (however conferred) may only be varied either by a “variation agreement” or in accordance with section 72 (subsection 1). A variation agreement is an agreement to vary the network wayleave right between the owner of the land and the licence holder entitled to the benefit of the network wayleave right.
172.A licence holder may apply to the Scottish Ministers to vary a network wayleave right in respect of land only if the appropriate notice has been given and one of the conditions in subsection (3) applies. Notice is to be given either by the licence holder giving notice to the owner of the land setting out the licence holder’s request to vary the network wayleave right, or, where the licence holder cannot ascertain the name or address of the owner of the land after reasonable enquiry, the licence holder giving notice in such form and manner as may be specified by the Scottish Ministers by regulations (subsection (2)).
173.Subsection (4) specifies circumstances where the owner of the land may apply to the Scottish Ministers to vary a network wayleave right if the owner has given notice to the licence holder setting out the owner’s request to vary the network wayleave right, and one of the conditions mentioned in subsection (5) applies.
174.Notice to be given by the licence holder under subsection (2)(a)(i) or by the owner of the land under subsection (4)(a) must state the reasons why the variation agreement is proposed, and specify the period (which is to be not less than 28 days from the date on which the notice is given) after which, if agreement is not reached, the person giving the notice may apply to the Scottish Ministers for the grant of a variation (subsection (6)).
175.Subsection (7) specifies that the Scottish Ministers may, following an application by a licence holder entitled to the benefit of a network wayleave right, grant a variation of the network wayleave right if they consider that it is necessary or expedient for the licence holder to exercise the right as varied for a purpose connected with the supply of thermal energy by means of a heat network by the licence holder. In addition, the Scottish Ministers may following an application by the owner of land in respect of which a network wayleave right is exercisable, grant a variation of the network wayleave right if they consider it is appropriate to do so. In considering whether it is appropriate to grant a variation of a network wayleave right in the second circumstance, the Scottish Ministers may in particular consider whether the exercise of the network wayleave right appears to them to materially prejudice the owner’s enjoyment or use of the land, whether any variation would not substantially increase the cost or diminish the quality of the supply provided by the licence holder’s heat network to persons who rely (or may in the future rely) on the supply of thermal energy by means of the heat network concerned, and whether any variation would not result in the licence holder incurring substantial additional expenditure.
176.Before granting a variation of a network wayleave right, the Scottish Ministers must allow an opportunity for representations to be made (subsection (9)). Where an application is made by the licence holder this opportunity must be given to the owner of the land and (if applicable), to a person other than the owner who has not agreed or given consent to the variation. Where an application is made by the owner of the land, the Scottish Ministers must give the licence holder the opportunity to make representations.