A significant increase in infrastructure and development projects across Scotland and the UK means the demands and obligations being placed on landowners are expanding.

More and more developers seek access to land and property to undertake surveys and plan for future project construction.

At Galbraith, we are approached regularly by landowners concerned about what to do when faced with such approaches and what they can do to protect themselves.

Here is a quick guide to the circumstances a landowner may face and how to handle such requests.

The most common approach made to landowners is for access by infrastructure and utility providers, such as water, electricity or telecoms operators. Each of these has statutory rights which they seek to rely on to gain access for the purposes of maintaining existing installations or seeking surveys for new installations.

It is important to know the differences and whether access for an existing site is already governed by a lease or wayleave and the terms contained therein. If seeking a new site, there are different requirements to follow; these companies cannot simply turn up unexpectedly and expect to be granted access.

A good example can be seen following the Scottish Government announcement of proposals for the construction of significant new transmission lines across large parts of Scotland by SSE and Scottish Power.

These companies have authority under the legislation to delivery nationally important infrastructure; but they must still approach affected landowners in advance of proposals to set out what they may require and, most importantly, what provisions they will put in place to protect the landowner from damage. This should also address how any damage they may cause as a consequence will also be compensated.

Unfortunately, things can and do go wrong. The terms of any access agreed become important since the consequences may not affect only the party seeking access but the landowner too. For example, vicarious liability for wildlife or environmental liability under the Scottish Environment Protection Agency.

Before any access is undertaken, there should therefore be sufficient opportunity for negotiations to agree an access protocol. This should address all practical and foreseeable issues resulting from the access being proposed.

Talks should also consider the nature of the land use already in place, the physical impact on the access tracks and the timing and duration of access. They should also seek to cover key security aspects, especially where agriculture is concerned.

Bio-security remains a hot topic. With challenges faced by all farmers, the livestock sector faces the most immediate threat of disease transfer. The last outbreaks of bird flu were in December 2023, and concerns remain over possible outbreaks of swine flu in Europe. The last foot and mouth outbreak, in 2003, resulted in devastation across UK farms.

Arable operators also need to remain extra vigilant, given the potential ease of spreading diseases such as PCN and clubroot from transfer of soils, which have long-lasting impacts to future cropping.

As demands for access continue to become more challenging, competition for occupation means landowners may not be willing to voluntarily provide access. This is where utility companies can rely upon statutory rights under their respective legislation, such as the Electricity Act 1989 or Water (Scotland) Act 1980. These contain processes for such companies seeking entry even whne an owner is reluctant to grant it.

It is therefore vital to address requests for access as early as possible and in as much detail as possible, to protect your land and property against unwanted consequences.

CASE STUDY

An incident occurred earlier this year with a telecoms contractor taking access to a remote mast site with an inappropriate vehicle for the condition of the access route.

The vehicle was damaged while taking access and the resulting oil leak nearly caused environmental contamination into a nearby watercourse.

Concerningly this event wasn’t notified to the landowner who came across the abandoned vehicle by chance and was able to help mitigate the impact with their own oil spill kit.

Steps are now being taken to clean up the contamination from the access track.