LexisNexis Q&A – If a wayleave is granted subject to a condition that the work be completed within six months, who could enforce that condition and how would they do so?

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17 Apr 2023

If a wayleave is granted subject to a condition that the work be completed within six months, who could enforce that condition and how would they do so?

This Q&A assumes that the wayleave has been granted by agreement. In that case, the wayleave is a licence, usually for service media such as electricity or telephone wires, to cross the grantor’s land (which may include the side of a building). The grantor of the wayleave and possibly their successor in title have the right to enforce the wayleave. That will usually be the freeholder or potentially a long leaseholder.

As for the method of enforcement, the question is whether the wayleave is truly conditional on work being conducted within a certain time. If it is, then the licence may be deemed to have lapsed if the relevant work has not been completed within six months. Any attempt to carry out work on the grantor’s property would then be trespass. If work was carried out outside the timeframe, then potentially the continued presence of the service media might be a trespass also. Trespass is actionable without proof of damage; the remedy is injunction or damages, or in some cases both.

On the other hand, a true construction of the wayleave might be that failure to complete the works in time was a breach of a term of the licence agreement. It is also possible for the grantor to impliedly waive compliance with the condition. In these two cases, there is probably no trespass because the permission to access and use the grantor’s land is not removed. An injunction may not be available and damages for breach are more likely, but these would need evidenced.

In order to determine which of the above applies, the wording of the wayleave needs to be interpreted using the usual contractual cases, such as Investors Compensation Scheme v West Bromwich Building Society [1997] UKHL 28 and Arnold v Britton [2013] EWCA Civ 902.

Author

David Peachey

Call: 2007

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