appendix 7
Compensation for acquisition of rights:
article by N E Hutchison and
J Rowan-Robinson

The article has been reproduced with kind permission from Professor Jeremy Rowan-Robinson

Norman E. Hutchison and Jeremy Rowan-Robinson, Utility wayleaves: a compensation lottery? [2002] JPIF 159

 

1. Introduction
For the good of all. That is the argument used when privately-held land is occasionally required for public purposes. In these instances it has long been accepted that the loss to the individual is offset by the gain to the wider community of which the individual is a part. In order to expedite public projects and to ensure that private rights give way when required, Parliament has been ready to confer powers of compulsion. The public sector and a host of others have all been able to rely on powers of compulsory purchase, including the creation of new rights falling short of ownership, to ensure that public purposes are achieved.

This paper focuses on an important but relatively neglected area where privately held land is commonly required for public purposes[1]. This is for the provision of physical infrastructure. In order to bring services such as water I sewerage, electricity, gas and telecommunications to the consumer, a network of pipes and cables together with supporting facilities has to be provided. Ready access to such services is generally considered to be in the public interest and Parliament has conferred statutory powers on the suppliers, including where necessary the use of compulsion, to secure provision. These powers typically provide for the creation of a wayleave (in effect a licence) or, where a more formal arrangement is required, something akin to an easement or, in Scotland, a servitude. In recent years, the supply of these services has increasingly been passed to the private sector and the providers are commonly referred to as "the utilities". This area is important, partly because of the very extensive network of pipes and cables in existence at the present time, partly because of the very large number of wayleaves that are negotiated each year, and partly because of the anticipated growth in the level of services to be supplied by cable and telephone during the next decade.

The history of the development of compulsory powers by public authorities has been one of striving to achieve a fair balance between, on the one hand, retaining adequate safeguards for the individual whose land is required and, on the other, the importance of not delaying schemes which are to serve a much needed public purpose. The former is reflected in the requirement to give notice of an intention to exercise compulsory powers, the right to object and to be heard in support of an objection and an entitlement to compensation reflecting a financial equivalent of the loss. The latter is reflected in the use of codified procedures, the delegation by Parliament of decisions on the exercise of compulsory powers in each case to a minister and provision for fast track vesting of title.

What is different about the use of compulsion by the utilities is that the supply of many of the services is now undertaken, as already indicated, not by public authorities, but by the private sector. The privatisation programme of the 1980s transferred the supply of many of the utilities from state control to companies carrying on their business in pursuit of profit. There is nothing very new about this. In the nineteenth century many of the utilities were in the private sector and operated with the benefit of compulsory powers. However, when they were brought into the public sector, procedures were streamlined and compensation was pegged to the fair market value. This owed much to the two reports of the Scott Committee which criticised the "indefensible complexities" of the procedures and the extravagant compensation settlements where access to private land was required for public purposes[2]. When the utilities were eventually returned to the private sector during the 1980s, they took with them the compulsory powers accompanied, for the most part, by the streamlined procedures and fair market value compensation. There was no significant adjustment in procedure or compensation to reflect their new status. McAuslan and McEldowney question whether this was appropriate[3]:

...the whole law of compulsory acquisition and compensation is based on the assumption that a public agency is acquiring land in the public interest and it is permissible in the circumstances that a legal framework is created which ensures that an even hand is held between the interests of the tax-payer and the private land-owner. It must be open to question whether the same basic framework is wholly appropriate where a commercial organisation wishes to purchase land for its commercial purposes.

This paper focuses on the compensation arrangements and sets out to consider whether they strike a fair balance between the interests of the utilities and the landowners. The paper is structured as follows: section 2 provides a brief discussion of the distinction between a wayleave and an easement in legal terms. Section 3 outlines the methodology adopted, while section 4 considers the measure of compensation. Valuation methodology and practice is discussed in section 5. Finally, section 6 provides some conclusions and recommendations.

2. Definitions: easements or wayleaves?

There is some confusion about the nature of the rights conferred by statute on the utilities. Some utilities have power to acquire a right in land less than ownership. This seems to be analogous to the creation of an easement (servitude in Scotland). Such a power is conferred, for example, on Transco[4], public electricity suppliers[5], public telecommunication operators[6] and water and sewerage undertakers in England and Wales[7]. Curiously, no such power is conferred on water authorities in Scotland. These rights are commonly referred to as "easements", although the legislation does not generally use this term. Indeed, very often there will be no dominant tenement and the rights granted (e.g. to construct fixtures on the land) will go beyond what is possible with an easement.

In addition, provision is commonly made in utilities' legislation for the creation of what is generally referred to as a "wayleave", although the legislation does not always use this term. The wayleave empowers the utility concerned to install, maintain, repair and replace their infrastructure in private land. Such provision is to be found, for example, in the Electricity Act 1989[8], the Telecommunications Act 1984[9] and the Water Industry Act 1991[10] (and the corresponding legislation in Scotland)[ll]. Curiously, no such compulsory power is conferred on public gas transporters.

In practice, there may be some difficulty in distinguishing between these two rights. Normally, at common law, a wayleave is treated as a form of licence and is personal to the parties, it is precarious and terminable after an agreed period and will not run with the land so as to bind successors in title. Because of this compensation is often paid by way of annual payments. Easements, on the other hand, if properly constituted, are legal interests in land. The benefit and burden are annexed to identifiable land and run with the respective dominant and servient tenements so as to bind successors in title. Easements may be of indefinite duration and because of this compensation is often paid as a capital sum. However, as we have already mentioned, the benefit of the utility easement may not be annexed to identifiable land. Furthermore, wayleaves often run for a considerable period of time, indeed some of the statutory provisions governing compulsory way leaves stipulate that they will bind anyone who is at any time an owner or occupier of the land[12]. In other words, it is not clear that in practice there is much difference between the two. Apart from Transco which has no choice, it is not clear that the utilities see any particular advantage in an easement that they do not enjoy through a wayleave.

3. Methodology

To answer the research question, a desk study was undertaken of the enormous range of legislation dealing with infrastructure, to determine the nature and extent of the statutory powers providing for the creation of wayleaves and “easements”. The results of the study are set out in Hutchison and Rowan- Robinson (2000). Thereafter, an interview survey of a sample of the key utilities was undertaken to obtain an understanding of the way in which they operate in practice. The list of those interviewed is set out in the Appendix. Reference to "key" utilities refers to the gas, electricity, telecommunications, water and sewerage industries. In addition, the bodies representing owners and occupiers of land were contacted to find out the consequences for those most affected. Although the desk study revealed a surprisingly wide range of such powers conferred on both public authorities and the private sector, this paper focuses only on the key utilities.

4. Compensation[13]

Although there is no constitutional requirement in the UK to compensate a landowner where access to private land is taken in exercise of compulsory powers, statute almost always provides for this. Furthermore, there is a strong judicial presumption that, in the absence of clear wording, Parliament does not intend to provide for the expropriation of a right without full compensation[14]. This is reinforced by the Human Rights Act 1998 which incorporates into English and Scots law the European Convention on Human Rights. This section of the paper examines the provisions for compensation which apply to the key utilities.

The measure of compensation

The question "what should be the measure of compensation" depends on the purpose that compensation is intended to achieve. The following brief discussion considers five different purposes that compensation can serve[15]. Although the discussion is based on compensation for compulsory purchase, these purposes are relevant also to compensation for compulsory access to private land by the utilities.

First of all, it has been suggested that a utilitarian approach to compensation would provide claimants with a small balance of advantage thus encouraging less objection and speedier settlements[16]. By way of illustration, Cullingworth cites the Minister of Transport in 1958 as stating that his department "could not be more strongly in favour" of a bill providing for an increase in the measure of compensation for compulsory acquisition because of the difficulties faced by his department in time-consuming procedures for compulsory acquisition at unattractive rates of compensation[l7].

Secondly, what has been described as a "Rawlsian" or "justice as fairness" approach to compensation[18] might also conclude that those faced with expropriation of their land should end up marginally better off, not for utilitarian reasons, but because that would seem to be just and fair .It has been suggested that the compensation decisions of the lay juries prior to 1919 exhibited some of the characteristics of a Rawlsian approach to compensation[19]. That was at a time when compulsory powers were being exercised by private enterprise carrying on business as much for the pursuit of profit as for the public interest.

Thirdly, and drawing on the approach to settling damages claims, the courts have determined that compensation for compulsory purchase should generally be measured by the financial equivalent of the claimant's loss[20]. Since 1919 and the growth in the exercise of compulsory powers by the public sector, statutory rules have measured this loss by analogy with a sale in the open market by a hypothetical willing seller[21]. Compensation, on this approach, reflects, so far as possible, the sum required to leave the claimant as well off financially, but no better off, than he or she would have been without the change in their position[22].

Fourthly, it has since been acknowledged that, where compulsory powers are exercised, claimants may face losses other than patrimonial loss. With residential claimants, this is sometimes referred to as "householder's surplus" and reflects loss of ties with an area, friendships made and so on, items to which it is difficult to attach a value[23]. This sort of loss is now compensated where homes are compulsorily acquired through the home loss payment[24] and there is pressure to recognise that others, such as commercial claimants, also experience similar uncompensated losses[25]. Compensation here goes beyond financial equivalence and offers a measure of solace to the claimant.

Finally, it has been argued that there might be advantage in terms of efficiency and equity if the measure of compensation enabled a claimant to participate in the social worth of the scheme for which access to private land is acquired[26]. Such an approach would be concerned not so much with measurement of loss but with redistribution of profit. The Sheaf committee, for example, considered the possibility of encouraging the voluntary sale of land to local authorities by allowing the payment of a price which gave the landowner part of the equity estimated to arise from the subsequent development[27]. The idea was rejected as inequitable and likely to inflate market values.

Against this background, the paper considers what measure of compensation is applied by statute to the compulsory creation of "easements" and wayleaves.

Easements

The position with regard to the creation of an "easement" or "servitude" has been standardised to quite a large extent and is, therefore, relatively straightforward. If Transco is used as an example, the Gas Act 1986 applies s. 7 of the Compulsory Purchase Act 1965, in adapted form[28] to the assessment of compensation in England and Wales. Section 7, as adapted, provides that:

In assessing compensation to be paid by the acquiring authority under this Act regard shall be had not only to the extent (if any) to which the value of the land over which the right is to be acquired is depreciated by the acquisition of the right but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of his, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.

As Denyer-Green points out [29], this identifies two heads of claim: depreciation in the value of the land through which the pipe-line is to be laid, including any lost development potential, and severance and injurious affection. Any value added to the land which is attributable to Transco's scheme would be ignored on the basis of the Pointe Gourde rule[30], so the owner could not claim for the value of the right to Transco. The Land Compensation Act rules are applied[31]. In Scotland, the principal measure is set out in s. 61 of the Lands Clauses Consolidation (Scotland) Act 1845 and this identifies the same two heads. In terms of the different measures of compensation described above, s. 7 of the 1965 Act aims to provide claimants with a financial equivalent of their loss.

The Telecommunications Act 1984 [32], Electricity Act 1989[33] and the Water Industry Act 1991[34] apply the same approach to their respective utilities.

Wayleaves

 The position with regard to compensation for compulsory wayleaves is more complex. There is very little standardisation and it is necessary to consider each of the utilities in turn.

1. Electricity. The Electricity Act 1989 provides that the occupier of land, and the owner where the owner is not in occupation, may recover compensation from the electricity company for the grant by the Secretary of State of a wayleave[35]. In addition, compensation is payable for any damage to land or moveables and for disturbance[36]. No further assistance is gained from the Act as to what is meant by "compensation for the grant". Is it, like s. 7 of the 1965 Act, simply concerned with a financial equivalence of the claimant's loss or does the reference to the grant imply an element of consideration? Unlike wayleaves for pipe-lines, electricity wayleaves may result in structures on the land which have a serious effect on the view and a corresponding depreciating effect on the value of the "retained" land[37]. Does "compensation for the grant" encompass injurious affection? The Land Compensation Act rules are not applied and the result, as Denyer-Green points out, is that the measure of compensation remains unclear[38].

2. Water supply and sewage disposal. The Water Industry Act 1991 provides for England and Wales that, if the value of an interest in land is depreciated as a result of the laying of a pipe in private land, compensation equal to the amount of the depreciation shall be paid to the person entitled to that interest[39]. The compensation entitlement applies not only to the land in which the pipe is being laid but to land held with that land. In other words, it includes injurious affection. The rules set out in s. 5 of the Land Compensation Act 1961 are to be applied to the assessment of compensation for depreciation[40] and provision is made for set off for any enhancement in value[41]. In addition to depreciation, any loss or damage of the nature of disturbance attributable to the carrying out of the works is to be compensated[ 42].

 The general approach in the 1991 Act to the measurement of compensation (depreciation, damage and disturbance) is similar to that for compulsory rights orders under the Pipe-lines Act 1962[43] except that the latter makes no reference to the application of the Land Compensation Act rules or to set off. Broadly, the approach in both cases is to provide for a financial equivalent of the loss.

North of the border, the Sewerage (Scotland) Act 1968 makes provision for compensation for any loss, injury or damage sustained by any person by reason of the exercise of the power to lay pipes for sewage disposal[44]. The Water (Scotland) Act 1980 provides that where a water authority lays a main through private land, the authority must pay compensation for "any damage done to or injurious affection of that land"[45]. It is not altogether clear whether "any damage" refers simply to disturbance or whether it would cover depreciation should this occur.

3. Telecommunications. The Telecommunications Act 1984 provides for the court to include such terms and conditions as appear appropriate, including such terms and conditions with respect to the payment of consideration as appears "would have been fair and reasonable if the agreement had been given willingly"[46]. Compensation is also payable for loss or damage[47]. The "fair and reasonable" test is similar to the provision in the Mines (Working Facilities and Support) Act 1923[48] and its successor Act of 1966[49]. Both the MWFS Acts provided for compensation for access to minerals to be determined on the basis of what would be fair and reasonable between a willing grantor and a willing grantee, having regard to the conditions subject to which the right is or is to be granted. In Re Naylor Benzon Mining Go. Ltd [50]and subsequently in BP Petroleum Developments Ltd v. Ryder [51] it was held that compulsory purchase principles should be applied in assessing compensation under these Acts so that the position of special purchasers should be ignored.

The 1984 Act provision was considered in Mercury Communications Ltd v. London and India Dock Investments Ltd [52]. Mercury argued that the same approach should apply. However, His Honour Judge Hague QC in the County Court, having regard to the terms of the legislation which it replaced and to other provisions in the 1984 Act Telecommunications Code, distinguished the provision and held that the determination of what was fair and reasonable involved an element of subjective judgement and that the phrase should be interpreted without regard to compulsory purchase principles. It followed from this that the Pointe Gourde principle, which requires any increase in value due to the scheme underlying a compulsory acquisition to be ignored, had no application. The claimants, for their part, argued that the proper consideration to be paid should be an annual sum representing a percentage of the anticipated net profit to Mercury from the development for which the cables were required, in other words a measure reflecting the social worth of the scheme. This argument was also rejected. Such an approach was considered appropriate only in cases like ransom strips where there is a single capital payment to be made and where the benefit to the utility is readily quantifiable. The judge concluded that wayleave payments reflect the use made of the right granted and its importance to the grantee so that a wayleave "rent" would generally be the most fair and reasonable way of calculating the consideration. That approach was not, however, practical in right of way cases such as this. In the end, a fair and reasonable consideration was determined by reference to the settlements under two earlier agreements negotiated in the area. The measure employed by the 1984 Act would seem to come closest to the social worth model in the sense that it is concerned less with the loss to the landowner than the gain to the utility, although it would seem that that worth should reflect the value of the wayleave rather than a proportion of the value of the scheme for which it is required.

Comment

 The different measures of compensation provided in law for compulsory access by the utilities to private land is both surprising and confusing. The interview survey suggests that there is too little experience of contested claims arising from compulsory access to be clear about just how far these measures actually differ in practice and how they affect valuation. On paper, however, they seem to range from a strict compulsory purchase compensation approach at one end to a more generous consideration-based approach at the other. The approach in practice to the valuation of rights negotiated under the shadow of compulsory powers is considered in the next section of this paper.

There is no obvious justification for the different approaches. It would seem to be highly desirable to have clarity about whether compensation should be based on depreciation, whether the Land Compensation Act rules should be applied to determine this, whether injurious affection is compensatable, whether there should be an element of consideration and whether set off applies[53].

5. Valuation

 Although much of this paper has been devoted to a discussion of the statutory provision for compensation, it is important to bear in mind that compensation arising from nearly all of the thousands of requests for access every year are settled by negotiation without recourse to statutory powers. The statutory measures of compensation clearly provide a backcloth against which the negotiations take place, but neither the claimants nor the utilities are bound by them. Much of the interview survey was directed towards identifying the approach adopted by the different utilities to the settlement of claims negotiated under the shadow of compulsory powers. A detailed questionnaire was prepared for the face to face interviews with seven promoters. These comprised two each from the electricity I water and telecommunication industries and one from the gas industry .In selecting tl.1e promoters care was taken to ensure as broad a representation of practice as possible, within the fmancial constraints of the project. From the survey it became evident that the vast majority of new wayleaves over the last three years were acquired in rural 167 areas. In consequence, lengthy interviews were also held with the National Farmers Union (NFU) in England and Scotland and with the Country Landowners Association (CLA). At all the interviews, which lasted between one and two hours, detailed notes were taken and the transcript was subsequently returned to the interviewees for checking.

This section will consider the appropriate valuation methodology which should be used in making a claim for compensation for land which is sterilised by a wayleave and will then compare current practice between the gas, electricity, water and telecommunication industries.

In granting a wayleave, whether by agreement or though compulsory powers, the landowner is giving a right to the promoter to enter his land to construct and use apparatus, and to return at any future date to carry out repairs. As discussed in the previous section, existing legislation makes provision for a variety of compensation measures but is not clear how far they differ, as only one -the Telecommunications Act 1984 -explicitly provides for consideration with the others compensating for any loss. The statutory compensation measure of loss to the claimant is normally calculated by reference to the diminution in market value of the land including the effects of severance and injurious affection, plus any disturbance elements; but with a negotiated settlement it does not need to be calculated in this way.

In some, but not all, cases of statutory compensation, payment is only made where the wayleave crosses a claimant's interest and the claimant receives no benefit. Where the owner benefits from the service provided then no payment is made. For example, where the owner of a business park requires the installation of a telephone line to the buildings, then no compensation would be payable for entering the land. However, if the line crosses an adjoining field in order to supply the business park then the owner of that field would be entitled to receive compensation. Generally, the companies charge their customers for the initial cost of connection and while practice and the amount differ between the utilities, the connection charge must to some extent defray the cost of the wayleave payments.

The NFU and the CLA (or equivalent bodies in Scotland) negotiate annual agreements with Transco as well as with the electricity and telecommunication industries, which are intended to guide compensation settlements in both compulsory and voluntary cases. These agreements substantially reduce the time spent on negotiation between the parties, although they are not binding. If members of theNFU or the CLA feel that they are not sufficient to compensate in their particular circumstances then they are free to negotiate on their own account, although the onus is on the claimant to prepare the claim and provide comparable evidence to substantiate the loss. Notably, there is no agreement with the water/sewerage industry.

The key issue is the degree of sterilisation which results from the existence of the apparatus. Some equipment might result in 100 per cent sterilisation while others might result in a minor or nil reduction in value or could even result in an increase in land value. To illustrate this point, where an electricity line is proposed through afforestation and it is considered that the electricity structures are likely to be permanently required, their presence effectively sterilises the ground in perpetuity along the length of the wayleave. As a result the landowner loses all future earning capability on the land occupied by the apparatus and under the wires, and the land value effectively reduces to nil. The compensation claim should reflect the financial equivalence of the loss and will be based on the reduction in market value as a consequence of the wayleave which in this case is full open market value, including future potential[54]. In contrast, where an electricity line is proposed across arable land, only the area of ground physically occupied by the apparatus is sterilised, with the farmer able to grow crops and carry out normal agricultural operations under the flying wires. In the case of underground pipes, the degree of sterilisation may be very minor except where development is proposed. Often building is prevented immediately above the pipe and this may affect the development value of the site. In practical terms, the presence of a pipeline may restrict the size of an extension to an existing dwelling or prevent new dwellings being constructed.

A further possible complication is the involvement of the Health and Safety Executive (HSE) where high pressure pipelines are proposed. The HSE is a statutory consultee to the local planning authority on planning applications where the application site is affected by a notifiable pipeline or is within a certain distance of such a pipeline. This distance is commonly referred to as the consultation zone. Where the HSE believes that there is unacceptable risk to the public as a consequence of the proximity of the pipeline, it will advise the planning authority to reject the application. This may result in a substantially wider sterilised strip than was originally compensated. Concern was expressed by practitioners about whether, in practice, compensation is paid for the entire area affected. "Easements", however, commonly provide for further compensation for lost development value where planning permission is refused solely because of the existence of the pipe-line.

It is common practice in negotiated wayleaves to set off any benefit due to the existence of the apparatus, even though statute does not always provide for set off in the exercise of compulsory powers. As noted in the previous section, the Water Industry Act 1991 does make provision for set off, and the provision of a new water main or sewerage system might well increase the development value of the contiguous land to a far greater extent than any reduction in value due to the sterilisation of the land at the immediate vicinity of the apparatus. Despite this set off provision, in the majority of cases the existence of the wayleave results in a reduction in land value, although not the complete sterilisation of the land in perpetuity.

The claim for compensation may be based on the future potential of the site. In any sale situation the future potential is reflected in the exchange price in the market place. Where the potential is uncertain, for example' where planning permission has not yet been obtained, the price includes an element of "hope value", and in this situation the price is normally greater than the existing use value but less than the alternative use value without any uncertainty. This is relevant here, as the majority of wayleaves are in rural areas, some on the peri-urban fringe, where the potential for alternative use will be reflected in the offers made in the open market by a purchaser. The onus is on the claimant to provide open market[55] evidence of any sales of land with similar characteristics.

In a poor market open market sales evidence may be difficult to obtain. There may be very few transactions and much of the evidence that does exist is often clouded in secrecy .Moreover, the property market is often criticised for not reacting quickly to changes in underlying fundamentals and is thus, to a degree, inefficient. Indeed, there is tentative evidence to support the view that the UK commercial property market exhibits only a weak form of efficiency[56] where prices do not fully reflect all publicly available information. For example, there may be a reduction in tax rates and current valuations may not adequately take into account this uplift in income. Claimants may therefore feel that relying on historic comparable evidence does not adequately reflect their loss. In these cases it may be appropriate to consider an explicit discounted cash flow approach, where all future income and expenditure is discounted back to the present day at an appropriate discount rate to leave a net present value which is the land value. However, inputs to the calculation require critical analysis as the NPV figure is highly sensitive to changes in a number of key variables, including the choice of discount rate. In view of this sensitivity, it is not surprising that promoters prefer to consider claims using past comparable sales evidence rather than explicit DCF techniques.

The exact area of land sterilised depends upon the type and purpose of the apparatus. A certain distance either side of the pipe, sewer, line or cable is required for safety and access purposes and should be included in calculating the area affected by the wayleave. Where a capital payment is to be made the width of the land sterilised is multiplied by the length of the wayleave and then a sterilisation factor applied. Often in the initial installation of the apparatus, a larger area may be required, (the initial working width) than will be needed in the future for maintenance purposes (the sterilised width). However, where the land faces any restrictions in use then the entire area should be included in the calculation[57]. Such restrictions might include prohibition against building above the pipe or the growing of trees. It was apparent in our survey of the utilities that the exact area which is sterilised is subject to negotiation and that practice differs between companies in the same industry .A standardised approach would appear to be needed to avoid uncertainty and confusion among claimants. On occasions, the agreed settlement is a global sum which is not easily dissaggregated among the component parts of the claim.

Where the sterilisation payment reflects the effect on market value, then no additional annual payments should be made. This would be double counting. Where annual payments are made they are calculated on a per item of equipment basis. The annual payments are often described as "rent", but this terminology can be misleading as the payment is in essence for a right acquired over land.

The measure of compensation under a negotiated wayleave

The results of our survey of current practice within the gas, electricity, water and telecommunication industries are now considered with the key differences highlighted.

Transco. Under the national agreement with the CLA/NFU, Transco has agreed to pay 80 per cent of the vacant possession value of the land affected. The land values are calculated with reference to local comparable evidence. The farmer can carry out normal acts of husbandry on the land and continue to grow crops or graze cattle. However, there is a restriction on building above the land occupied by the pipe and on a buffer zone either side of the pipe. This sterilised area for building purposes ranges from three metres to 24 metres depending on the diameter and pressure of the pipe. In addition an occupier's payment is made, partly as compensation for the time which the occupier spends on the paperwork and partly as an inducement for the early return of the consent form. On receipt of the signed form, Transco is allowed to enter the land prior to the completion of the legal formalities. The payment is calculated on a per metre basis depending on the diameter of the pipe. For example, if the diameter of the pipe is 36" to 48" the payment is £2.50 per metre run.

Where the land affected is not in agricultural use, then Transco is more flexible with the level of payments. In practice, with small areas in residential gardens, higher rates are employed, as owners will not accept small sums, of say, £25. In other cases where the land affected has a higher open market value than agricultural values, then the payments may be at reduced percentage, say 50 per cent of the land value and are subject to negotiation between the parties.

Disturbance payments are made to cover such items as crop loss, repairs to drainage, professional fees and a payment to reflect the farmer's time. The national agreement also allows the claimant to make a further claim for loss of development value should planning permission not be granted at any time in the future notwithstanding that the original claim may have been settled on the basis of existing use value plus disturbance.

Under this agreement the claimant receives significantly more than would seem to be strictly required to compensate for the actual loss. This would indicate that both parties have accepted the need for an element of consideration to be paid. While accepting that the occupier must allow access at all times, a farmer can very often carry on growing crops or grazing cattle and thus has no loss of income, yet receives compensation amounting to 80 per cent of the land value with an opportunity to seek further compensation if planning permission is refused solely because of the existence of the pipeline. At the same time, Transco is satisfied with the level of payment as it gains swift access to the land, reduces the administrative cost of negotiating payments while at the same time initiating and maintaining a good working relationship with the landowner which is seen as crucial. All the utilities require unfettered access to their apparatus for maintenance and repair, and if the goodwill waslost and landowners adopted a "locked gates policy" then this could result in lengthy disruption to supplies and services.

Electricity. The national agreement with the electricity industry, consists of two elements. The first part is an annual payment to landowners/owner occupiers and is calculated on a per item of equipment basis. It is unclear exactly how these figures are calculated, but from the evidence submitted in Clouds Estate Trs v. Southern Electricity Board (1983) 268 EG 376 and 451, the basis of the rates would appear to stem from the underlying rental value of the land. However, the Current rates appear to be far in excess of agricultural rental values. If one imagined a hypothetical field full of electricity poles the total annual payments would greatly exceed the underlying rental value of the land in agricultural use. Moreover, as the rates are based on aggregated data of land values which are then applied throughout the country, the rates may seem particularly at odds with the underlying rental values of poor quality land in remote areas. The CLA argues that the payment includes other elements, for example, compensation for the presence of the lines, the loss of sporting rights and visual impact of the whole apparatus[58]. While this may be true, the payments would also seem to include what amounts to a consideration for the granting of the wayleave.

The second element of compensation is an annual payment to occupiers for agricultural interference and is calculated using an ADAS model. The rates are revised annually, on an upward only basis, and attempt to accurately reflect the increased costs associated with the presence of the equipment, such as the extra time needed to harvest the crop and the cost of additional weedkiller. Despite the upward only clause at a time when some costs are reducing, these payments attempt to reflect actual loss, and thus appear not to include an element of consideration.

Disturbance payments are made to cover any loss during installation or subsequent repair of the apparatus and claimants are also entitled to compensation under the headings of severance and injurious affection. However, the various elements of the claim must be consistent with each other[59]. It is not, for example, possible to claim disturbance or injurious affection if the depreciation claim is based on development potential which would inevitably involve disturbance or injurious affection. The electricity companies are satisfied with the level of compensation paid, once again reflecting the need for a good working relationship with the occupier in order to ensure access in the future.

Water. There is no national agreement with the CLA/NFU and the water/ sewerage industry. During the research, two completely different approaches to compensation were found between the non privatised North of Scotland Water Authority (NoSWA) and a privatised water company operating in England and Wales. The NoSWA pays no compensation for the acquisition of wayleave rights (except on Crown Land). As with all of the promoters involved in our study, in preparing the line of the wayleave, the Authority works closely with the landowner to rninimise any disruption. The Authority argues that if the landowner suffers no loss as a result of the presence of the water main or sewer under his land, then no compensation is payable. However, compensation is paid for disturbance where the loss arises directly and unavoidably as a result of the scheme, and for injurious affection.

The privatised water company operating in England and Wales makes capital payments for the acquisition of the wayleave on a per metre basis, based on 50 per cent of the agricultural land value. Where the land is in non agricultural use, then "enhanced" agricultural land values are used which, although an improvement, may be significantly less than the full open market value of the land. This anomaly would appear to be based purely on commercial expediency, with the route of the pipe chosen in order to rninirnise sterilisation. One-off capital payments are made for structures above the ground such as manhole covers, with the level of payment (normally between £100 and £400) dependant on the degree of inconvenience to farm activities such as ploughing. Unlike the agreement with the electricity industry, the amount is not calculated with reference to an ADAS model of agricultural interference, but by negotiation between the parties. This seems a further anomaly which introduces potential inconsistency between companies and which could be overcome. Indeed, it was suggested during our research that some water companies offer significantly lower levels of payment than others. Disturbance payments are made to cover any direct and unavoidable loss suffered during installation and maintenance, and compensation is paid for injurious affection provided this is consistent with other elements of the claim.

While the terms offered by the water company is less than paid by Transco, the payment, based on 50 per cent of agricultural land value, appears greater than the actual loss suffered by a farmer and thus would appear to include what amounts to an element of consideration for the grant of the wayleave. The water company is highly satisfied with the level of compensation payable believing it to be commercially expedient and reasonable to make a payment in order to establish a good working relationship with the owner.

Telecommunications. The CLA/NFU enter into national agreements with British Telecom and the other main operators such as Cable & Wireless Communications (Mercury) Ltd. Similar to the agreement with the electricity industry, the agreement with ET consists of two parts; an annual payment to landowners which is calculated on a per item of equipment basis, and annual agricultural disturbance payments to occupiers which are in line with the ADAS model. ADAS model.

For the period ending 31 March 2001, Mercury agreed to pay a single payment of £6.00 per metre run for a fixed term of 20 years for the right to lay maintain and renew up to four ducts laid in a single trench in agricultural land. The farmer can continue growing crops above the ducts although the area is sterilised for building purposes. Single capital payments are also made for junction boxes which are located below and finish level with the surface and which can cause a nuisance for ploughing. Using an average price for 173 agricultural land of £7,833 per hectare[60] and assuming a sterilised width of 6 metres, the payment of £6.00 per metre represents a payment at nearly one and a third times the underlying land value.

The CLA, which was involved in negotiating the agreed rate, commented that the payment of £6.00 per metre is not related in any way to agricultural land value. It was argued that as the telecommunications operator can lay cables in the public highway without payment, the figure of £6.00 per metre is a rough approximation of the difference in cost between restoring tarmacadam and restoring agricultural land after cable laying. The figure was therefore calculated on an avoided cost basis. Whichever way the figure is calculated, the payment appears to include an element of consideration, as the farmer can carry on his normal operations.

However, in non-rural locations the exact method of valuation employed is far from clear. In these cases the settlement is more a reflection of the negotiation strengths of the parties with the level of land value and the width of the sterilised strip all being subject to a degree of give and take. Exactly how much consideration is actually paid is uncertain.

Comment. One of the most striking aspects of the research has been the different levels of payment made to claimants for negotiated wayleaves. Some of the payments are annual, some one-off capital amounts and some, as with Mercury on agricultural land, capital payments for a limited period of time. Moreover, some utilities attempt to compensate actual loss while others pay no compensation, or alternatively include a consideration for the grant of the right which is greater than the actual loss. While similar rates across all the utilities would not be appropriate, as the degree of sterilisation depends on the apparatus employed, some consistency of procedure and approach to compensation, reflecting a fair balance for claimants, would seem sensible.

To illustrate this point, imagine the predicament of a landowner who owns a field which is located on the edge of an expanding town and who is approached by four different utilities -gas, electric, water and telecommunication -all of which wish to place equipment under, over or on his land. The landowner is faced with a bewildering plethora of legislation, which will produce compensation levels which will differ, not only across the industries but also in some cases between companies within the same industry for the installation of the same apparatus. This is not satisfactory and leads to a compensation lottery.

6. Conclusions and recommendations

Striking a fair balance

One feature which distinguishes the nature of the power conferred on the utilities from the exercise of conventional compulsory purchase powers is the continuing relationship between the landowner and the utility. The CLA referred to this as having some of the characteristics of a landlord/tenant relationship. If this continuing relationship is to operate on a satisfactory basis, it is clearly desirable that both sides should be content with the outcome. Striking a fair balance is therefore very important and detailed below are a number of observations on current practice and recommendations for change.

The measure of compensation should be standardised for the creation of an easement and the Land Compensation Act rules should be invoked with minor adaptations. There is no doubt that a lot of confusion would be avoided if the measure of compensation for wayleaves was clarified and standardised. At present the measure varies from utility to utility and in some cases is unclear. It is recommended that the measure of compensation should be codified. The code could then be incorporated by reference into every statute which confers compulsory wayleave powers on a utility. In doing so the following matters would need to be determined:

Q1. Should a consideration be paid for the grant of the wayleave or should landowners simply be entitled to a financial equivalent of their loss?

This is a matter of political choice; but it would seem that there would be nothing very novel about providing for a consideration. This research shows that, with the exception of water in Scotland, voluntary settlements commonly include what in effect is an element of consideration; and the Telecommunications Code makes explicit provision for consideration. The authors believe that an element of consideration would be consistent with the privatisation of the utilities. It would also be consistent with the position which applied in the nineteenth century before the utilities were brought into the public sector. It is arguably also fair that those affected should receive some recognition beyond their financial loss; and experience in practice suggests that there could be advantages for the utilities in terms of a speedy settlement.

Q2. If a consideration is to be paid, how should it be measured?

In Mercury Communications Ltd (above) the judge favoured, but did not adopt, an approach for annual payments which reflected the use made of the right granted, i.e. something akin to a royalty payment or a wayleave "rent". The implication from the judgement is that with capital payments, an assessment based on the increase in the value of the land due to the scheme for which the wayleave is required might be appropriate: the so-called Stokes v. Cambridge approach[61].1n other words, the consideration might reflect an element of the gain to the utility. However, in reality it is extremely difficult to measure the gain to the utility from the installation of specific items of apparatus at the local level. Some of the apparatus installed will produce a very high level of return while others, in the more remote areas, may be lucky to produce a minimum level of profit. In practice, a percentage of market value is used, in a somewhat arbitrary way, which in effect partly reflects the gain to the utility. For rural areas, the percentage is renegotiated from time to time (except for water) on a national basis by the CLA/NFU (and their Scottish counterparts) and the utilities. This sort of approach is analogous to the home loss payment which is an arbitrary additional payment to residential occupants dispossessed as a result of compulsory purchase[62]. This would seem to be a pragmatic approach and it is recommended that the current legislation is amended to reflect that the compensation due to claimants should reflect gain to the promoter but that it is calculated as a percentage of market value. Some support for such an approach is to be found in the decision of the Lands Tribunal in County and District Properties Ltd v. Harrow London Borough Council[63].In that case the reference land was compulsorily acquired for comprehensive development along with two other parcels of land belonging to the acquiring authority .It was accepted by the Tribunal that the highest value for the reference land that could be obtained in the open market would be in anticipation of the development of the combined site, including the acquiring authority land as offices. An allowance was made in the valuation of the reference land for the acquisition of the land not within the ownership of the claimant. This reflected a 33 per cent premium to account for the "ransom" element. The percentage, in effect the marriage value for the additional land making up the combined site, equates with the percentage of market value to which we are referring.

In County and District Properties the percentage reflected the relatively weak bargaining positioning of the owner of the additional land. We think the exact percentage should be the subject of negotiation between the parties and there may well need to be different rates for rural and urban areas. For example, a rate of 80 per cent of market value may be appropriate when the land is in agricultural use. However, 80 per cent of market value when the land has planning permission for say, prime retail, may produce a level of compensation which prohibits the installation of services and may run contrary to the public interest argument. There is a precedent for differentiating rural and urban areas. The supplement payable on compulsory acquisition in Scotland pre 1919 was considerably more generous in rural than in urban areas.

However, in certain instances the claimant may well suffer a loss which is greater than the compensation calculated by reference to a percentage of market value. This may be particularly the case where planning permission for a higher use is denied due to the presence of the apparatus. This would be unfair to the claimant, who would be an unwilling seller unable to walk away from the proposal. In these cases there needs to be a fall back position where the claimant can decide to pursue compensation based not on percentage of market value, but on the basis of all loss. This will generally be reflected in depreciation in the market value of the land, including depreciation in the value of any retained land. Depreciation may be measured by the effect on theexisting use value of the land or, in appropriate cases, the development value. An alternative approach would be to compensate on an itemised basis for the actual effects of the works on the management of the land, rather than for the consequences of these effects on the market value[64 ].

The claimant would not be able to make a claim based on both a percentage of market value as well as all loss, as in that case the compensation would reflect both value to the purchaser as well as value to the seller, which would be double counting.

Disturbance should also be paid, including any loss of profits which is not reflected in depreciation. A disturbance claim should, however be consistent with the rest of the claim. In other words, if the claim for loss is based on development value and/or injurious affection, then disturbance would not normally be recoverable.

A decision will also need to be made about set off. There are two problems with set off. First of all, the prospect of connecting to a utility is likely to benefit a number of properties, including some which have not been subject to a wayleave. Why should those which are subject to the wayleave be penalised by having this benefit set off against the compensation when the others retain the benefit? Secondly, this is an arbitrary means of recovering bettenl1ent. Set off is measured, not by the amount of betterment but in effect by the amount of worsenment. In other words, if the benefit is considerable but the loss is limited, the utility will only recover that amount of the benefit which is co-extensive with the loss. It might be more logical if the utilities were simply to rely on user charges to recover this benefit.

In putting forward these recommendations, it is recognised that any change produces winners and losers and drawing the line between the interests of the utilities and those of landowners is always going to be difficult. However, there is no doubt that this is an area where change is required.

Notes

1. For a helpful discussion of this whole area see Wilkinson (1995).

2. First Report of the Committee on the Acquisition and Valuation of Land for Public Purposes, Cmnd.8998 (HMSO, 1918a); Second Report of the Committee Dealing with the Law and Practice relating to the Acquisition and Valuation of Land for Public Purposes, Cmnd.9229 (HMSO, 1918b).

3. Electricity Act 1989, Current Law Statutes Annotated, ch.29, annotations by P. McAuslan and J. McEldowney. See too B. Denyer-Green, "Specific purposes, specific powers: the powers of privatised utilities", in Proceedings of the National Symposium on Compulsory Purchase: An Appropriate Power for the 21st Century?, DETR, 1999 (Denyer-Green, 1999).

4. Gas Act 1986, s. 9(3) and Sched. 3, Part III, para. 1, as amended by the Gas Act 1995, Sched. 3, para. 56.

5. Electricity Act 1989, s. 10 and Sched. 3, para. 1(2).

6. See, for example, Telecommunications Act 1984, s. 34(3). 7. Water Industries Act 1991, s. 155(2). 8. Section 10 and Sched. 4, para. 6.

9. Section 10 and Sched 2, para. 5.

10. Section 159.

11. See the Water (Scotland) Act 1980, s. 23 and the Sewerage (Scotland) Act 1968, s. 3.

12. See, for example, the Electricity Act 1989, s. 10(1) and Sched.4. It should be noted that negotiated wayleaves will generally only bind the parties to them.

13. See generally Denyer-Green (1999), supr n. 2.

 14. Burmah Oil Company (Burma Trading) Ltd v. Lord Advocate 1964 SC (HL) 117; Tiverton and North Devon Railway Co. v. Loosemore (1884) App. Cas. 480; Colonial Sugar Refining Co. Ltd v. Melbourne Harbour Trust Commissioners [1927] AC 343; Bond v. Nottingham Corporation [1960] Ch. 429; Belfast Corporation v. OD Cars Ltd [1960] AC 490; and Westminster Bank Ltd v. Minister of Housing and Local Government [1971] AC 508.

15. See generally J. Rowan-Robinson, Compulsory Purchase and Compensation: The Law in Scotland (W. Green & Son Ltd, 1990), Ch. 4 (Rowan-Robinson, 1990).

16. M. Bell (1980), "Taking justice seriously: Rawl's, utilitarianism and land compensation", Urban Law and Policy, Vol. 23 No.3 (Bell, 1980).

17. J.B. Cullingworth, Environmental Planning, Vol. IV (Cullingworth, 1980), p. 185. See too P. McAuslan, Ideologies of Planning Law, (Pergamon Press, 1980), Ch. 4 (McAuslan, 1980).

18. From J. Rawls, "justice as Fairness", 67 Phil. Rev. 164 (Rawls, 1958); also J. Rawls, A Theory of Justice (Harvard University Press, 1971), p. 22 (Rawls, 1971).

19. Bell (1980), supra n. 36.

20. Stebbing v. The Metropolitan Board of Works (1870), LR 6 QB 37.

21. See the Land Compensation Act 1961, s. 5; Land Compensation (Scotland) Act 1963, s. 12.

22. Horn v. Sunderland Corporation [1941] 2 KB 26 per Scott LJ at pp. 42 and 49.

23. See The Report of the Commission on the Third London Airport (HMSO, 1971); The Report of the Urban Motorways Committee: New Roads; in Towns, Department of the Environment (Department of the Environment, 1972); and Development and Compensation -Putting People First, Cmnd.5124 (HMSO, 1972a).

24. Land Compensation Act 1973, ss. 29-33; Land Compensation (Scotland) Act 1973, ss. 27-30.

25. RICS, Compensation for Compulsory Acquisition, 1995; jJ Rowan-Robinson and N. Hutchison, "Compensation for the Compulsory Acquisition of Business Interests: Satisfaction or Sacrifice", 1995, Vol.13 No. 1, Journal of Property Valuation and Investment, Vol. 44; City University Business School, The Operation of Compulsory Purchase Orders, Report to the Department of the Environment, 1996, p. 7.

26. See J.L. Knetsch, Property Rights and Compensation (Butterworths & Co., Canada, Ltd., 1983), ch. 4; and W.D. Jones (1972), "The impact of public works on farming: a case study relating to a reservoir and power station in North Wales", Journal of Agricultural Economics, Vol. 23 No.12.

27. Report of the Working Party on Local Authority/Private Enterprise Partners/up Schemes (HMSO, 1972b), paras. 94-6 and Annex K.

28. As substituted by the 1986 Act, Sched. 3, para. 7.

29. Denyer-Green (1999), supra n. 2

30. Derived from Pointe Gourde Quarrying and Transport Co. v, Sub-Intendent of Crown Lands; [1947] AC 565. The principle is to the effect that increases or decreases in value due to the scheme underlying the acquisition should be ignored in assessing compensation.

31. The rules are set out in the Land Compensation Act 1961, s. 5; and the Land Compensation (Scotland) Act 1963, s. 12.

32. The 1984 Act does not expressly adapt s. 7 of the 1965 Act. It simply applies in s. 34(1) the Acquisition of Land Act 1981 procedure and that Act, in turn, applies the Land Compensation Act 1961 to the assessment of compensation (s. 4(1)).

33. 1989 Act, Sched.3, Part II, para. 8

34. 1991 Act, s. 154(5) and Sched. 18.

35. 1989 Act, s. 10(1) and Sched. 4, para. 7(1).

36. 1989 Act, s. 10(1) and Sched. 4, para. 7(2).

37. It is reasonable to highlight the position of neighbours who may also suffer injurious affection and corresponding depreciation in the value of their property as a result of the structures but who will not fall within the compensation entitlement in s. 10(1) and Sched. 4, para. 7(1) of the 1989 Act.

38. Denyer-Green (1999), supra n. 2.

39. 1991 Act, s. 180 and Sched. 12, para. 2(1). In Leonidis v. Thames Water Authority (1979) 77 LGR 722, the claimant was held on earlier legislation to be entitled to loss of profits incurred over a period of 11 months as a result of the exercise of powers by the Water Authority.

40. 1991 Act, s. 180 and Sched. 12, para. 3(2). See Collins v. Thames Water Utilities (1994) 99 EG 116; Rush and Tomkins Ltd v. West Kent Sewerage Board (1963) 14 P&CR 469.

41. 1991 Act, s. 180 and Sched. 12, para. 3(4).

42. 1991 Act, s. 180 and Sched. 12, para. 2(2).

43. Section 14.

44. 1968 Act, s. 20.

45. 1980 Act, s. 23(2).

46. 1984 Act, s. 10 and Sched. 2, paras. 5(4) and 7(1)(a).

47. 984 Act, s. 10 and Sched. 2, para. 7(1)(b).

48. Section 9(2). 49. Section 8(2).

50. [1950] Ch. 567.

51. [1987] RVR 211.

52. (1994) 69 P&CR 135.

53. It is doubtful whether set off can be implied - South Eastern Railway Co. v. London County Council [1915] 2 Ch. 252 per Eve J.

54. Hutchison, N., Cameron A. and Rowan-Robinson, J. (1999), “Assessing the compensation for electricity wayleaves”, Journal of Property Investment and Finance, VoI. 19 No.2 (Hutchison et al, 1999).

55. Open market value is defined in the RICS Appraisal and Valuation Manual (1997) RICS, London (RICS, 1997a).

56. G. Brown (1991), Property Investment and the Capital Markets, E&FN Spon, London (Brown, 1991).

57. See St Johns' College Oxford v. Thames Water Authority, (1990)1 EGLR 229. It was argued by the water industry that this case was unusual due to the abnormal depth of the sewer which necessitated a wider working width than would normally be required.

58. Pym, A. and Harwood, O. (1997), Cables and Wires, Country Landowners Association, London (Pym and Harwood, 1997).

59. Horn v Sunderland Corporation [1941] 2KB 26

60. RICS Farm Price Survey, October 1997, RICS London (RICS, 1997b).

61. Stokes v. Cambridge Corporation (1961) 13 P&CR 77.

62. Land Compensation Act 1973, ss. 29-33.

63. County and District Properties Ltd v. Harrow London Borough Council [1992] RVR 204.

64. For an illustration of the differences in these approaches see Coofle v. Secretary of State for the Environment (1973) 27 P&CR 234.

References and further reading

Bell, M. (1980), "Taking justice seriously: Rawl's, utilitarianism and land compensation", Urban Law and Policy, Vol. 23 No.3.

Brown, G. (1991), Property Investment and the Capital Markets, E&FN Spon, London.

City University Business School (1996), The Operation of Compulsory Purchase Orders, Department of the Environment, London.

Cullingworth, J.B. (1980), Environmental Planning, Vol. IV, HMSO, London.

Denyer-Green, B. (1999), "Specific purposes, specific powers: the powers of privatised utilities", in Proceedings of the National Symposium on Compulsory Purchase: An Appropriate Power for the 21st Century?, DETR, London.

Department of the Environment, (1972), The Report of the Urban Motorways Committee: New Roads in Towns, HMSO, London.

Department of Trade and Industry (1995), Review of Mining Legislation, DTI, London.

HMSO (1918a), First Report of the Committee on the Acquisition and Valuation of Land for Public Purposes, Cmnd. 8998, HMSO, London.

HMS0 (1918b), Second Report of the Committee Dealing with the Law and Practice relating to the Acquisition and Valuation of Land for Public Purposes, Cmnd. 9229, HMS0, London.

HM0 (1971), The Report of the Commission on the Third London Airport, HMSO, London.

HMS0 (1972a), Development and Compensation -Putting People First, Cmnd. 5124, HMS0, London.

HMS0 (1972b), Report of the Working Party on Local Authority Private Enterprise Partnership Schemes, HMSO, London.

Hill, A. (Ed.), Daintith and Willoughby's United Kingdom Oil and Gas Law, 2nd ed., Sweet & Maxwell, London.

Hutchison, N.E. and Rowan-Robinson, J.R. (2000), "Utility wayleaves: a legislative lottery?", RICS Research Foundation, Vol. 3 No.10.

Hutchison, N.E., Cameron, A. and Rowan-Robinson, J.R. (1999), " Assessing the compensation for electricity wayleaves". Journal of Property Investment and Finance, Vol.19 No.2.

Jones, W.D. (1972), "The impact of public works on farming: a case study relating to a reservoir and power station in North Wales", Journal of Agricultural Economics, Vol. 23 No.12.

Knetsch, J.L. (1983), Property Rights and Compensation, Butterworths & Co., Canada Ltd, Markham.

McAuslan, P. (1980), Ideologies of Planning Law, Pergamon Press, Oxford.

Pym, A. and Harwood, O. (1997), Cables and Wires, Country Landowners Association, London.

Rawls, J. (1958), "Justice as fairness", Phil Rev., Vol. 164 No. 67 .

Rawls, J. (1971), A Theory of Justice, Harvard University Press, Boston, MA.

RICS (1995), Compensation for Compulsory Acquisition, RICS, London.

RICS (1997a), Appraisal and Valuation Manual, RICS, London.

RICS (1997b), Farm Price Survey, RICS, London.

Rowan-Robinson, ]. (1990), Compulsory Purchase and Compensation: The Law in Scotland, W. Green & Son Ltd, Edinburgh.

Rowan-Robinson, ]. and Hutchison, N. (1995), "Compensation for the compulsory acquisition of business interests: satisfaction or sacrifice", Journal of Property Valuation and Investment, Vol. 13 No.1, pp. 44-65.

Wilkinson, H. W. (1995), Pipes, Mains, Cables and Sewers, 6th ed., FT Law and Tax, London.