One important element when considering whether a site is suitable for development is services. Firstly whether there are the necessary rights for services and secondly whether there are any existing services on the site which might hinder development. This week we are looking at how services can be moved if they would interfere with a proposed development.
What are lift and shift provisions?
Lift and shift provisions are clauses found in some utility agreements which permit a developer to alter the route of service apparatus and accompanying easements in certain circumstances. These alterations may be required for several reasons, including alteration of the development layout pursuant to the grant of a new planning permission (or the alteration of an existing one). Lift and shift clauses provide a mechanism for future proofing of a site in such circumstances where they can be negotiated but it should be noted that utility companies do not generally offer these, particularly more recently, as they like to retain control over their easements.
What does a lift and shift provision enable?
A lift and shift provision will enable the landowner to require the utility provider to move the apparatus to a different location on the site and to vary the accompanying easement. The clause should clearly set out the circumstances in which it will apply, timescales for moving the service apparatus and agreement as to who will bear the costs of the relocation.
It should be noted that regardless of the contractual agreement between a landowner and a utility company, utility companies benefit from statutory powers that allow them to apply to the Secretary of State for a wayleave permitting it to inspect, maintain, adjust, repair, alter, replace or remove an electric line under or across private land where required for the servicing of land. Such rights will need to be measured against the terms of any wayleave agreement including any lift and shift provisions with consideration being given to the timescales required to deal with any such applications.
What other rights are there if you do not have a lift and shift provision?
If lift and shift clauses are not included, but development land is subject to an easement or wayleave agreement, a landowner can request the utility company to relocate its apparatus. The Electricity Act 1989 (EA) contains statutory rights for landowners to lift and shift electricity cables. Gas companies are governed by the Gas Act 1986 but unlike the EA, there are no statutory rights for the lifting and shifting of gas pipes.
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