Governance Documents

Procedure for Wayleave Requests Across Carlby Parish Green Spaces

Step 1: Submission of the Formal Request

The applicant (e.g., utility provider, telecoms operator, or adjacent property owner) must submit a formal written request to the parish clerk. The request must include:

• Detailed plans showing the exact route of the proposed cabling, piping, or access (marked in red against the green’s boundaries).
• Detailed methods of installation (e.g., directional drilling versus open trenching).
• Duration of the requested works and the proposed wayleave term (e.g., 15 years).
• Evidence of insurance and a full method statement to prevent damage.

Step 2: Preliminary Legal Assessment & Statutory Check

Before placing the item on the council agenda, the clerk must review the proposal against the 19th-century TVG protection statutes:

• Recreational Test: Does the wayleave cause any permanent encroachment or interrupt the public’s enjoyment of the green?
• Voluntary vs Statutory Rights: Is the utility operator exercising a statutory right? Some utility/telecom companies have overriding statutory powers (e.g., under the Telecommunications Code or Electricity Act 1989) that give them legal authority to claim a necessary wayleave.
• Alternative Route: The council should ask whether the infrastructure can be routed around the green using highways or alternative private land instead.

Step 3: Formal Parish Council Review and Motion

The request must be listed as an item on the agenda for a scheduled Parish Council meeting.

• The council will consider whether the proposal passes the "Better Enjoyment" test.
• If it is a minor utility connection with zero permanent surface trace (e.g., underground laying with total immediate reinstatement), the council may determine it does not breach the protective legislation.
• If the council approves the principle of the request, it must pass a resolution: "To grant the wayleave in principle, subject to final legal approval, satisfactory reinstatement, and payment of the council's legal fees."

Step 4: Section 38 Consent (If Applicable)

If the proposed wayleave involves significant groundworks, fences, or physical structures on the green, the council or the applicant must apply for consent:

• Authority: An application must be submitted to the Planning Inspectorate under Section 38 of the Commons Act 2006.
• Exemptions: Normal underground works by licensed statutory undertakers may sometimes fall under specific exemptions, but this must be verified.

Step 5: Public Consultation & Advertising

To comply with local authority transparency and the Local Government Act 1972, the parish council must ensure the local community is informed.

• Notice of Intent: Post the proposed works on the council website and local notice boards.
• Review Feedback: Any objections from local residents or regular users of the green regarding loss of recreational space must be carefully reviewed before finalising the agreement.

Step 6: Drafting the Agreement & Reinstatement Terms

The council's will appoint solicitor who must draft a bespoke wayleave agreement rather than using a standard template. This agreement must include:

• Strict Reinstatement Obligations: A clause requiring the grantee to return the green to its exact prior condition, including topsoil replacement and reseeding.
• Financial Deposit / Bond: A financial bond held by the council until the works are successfully completed and the turf has established.
• Termination & Removal Clauses: Clear terms outlining how the agreement can be ended and the equipment removed.
• Indemnity: A full indemnity clause protecting the parish council against claims resulting from the works.
• Fees: A requirement that the applicant covers all the council’s legal and administrative costs.

Step 7: Completion and Signing

Once all consents are secured and the terms are agreed upon, the council executes the document. The wayleave remains a personal contract and is not registered against the land title at the Land Registry, unlike a permanent easement.