Overhead ESB line causing nuisance in garden

It's alwyas worth asking. ESB Networks can be very accomodating. Also, if you want a definate answer then consult a solicitor.

I came across this article recently. While it's not going to help the OP (sorry OP), it's an interesting view of the way these matters are dealt with in the UK.

I'm sorry the link is so long.

http://webcache.googleusercontent.com/search?q=cache:kS76zzrCmycJ:www.biggartbaillie.co.uk/ideas--insights/all-articles/planning--construction/an-electricity-surge---two-cases-concerning-the-electricity-act+&cd=40&hl=en&ct=clnk&gl=uk

This is the relevant part, sorry it's even longer.
An Electricity Surge - Two Cases Concerning The Electricity Act

Tuesday, January 12, 2010
by Murray Shaw
The Scottish Courts have decided two cases (concerning very different issues) in relation to the Electricity Act and the proper interpretation of this legislation. The situation is a bit like buses – no cases for ages then two come along at once!
The first decision was issued on 20 November 2009 and involves Patersons of Greenoakhill Limited v SP Transmission Limited. The decision was a decision of Lord Glennie but it is to be appealed to the Inner House of the Court of Session.
The Electricity Act 1989 in effect set up the privatised electricity industry. Though private companies, those companies who are licensed under the Act to supply or transmit electricity are the beneficiaries of significant rights and powers (arguably necessary in the public interest to permit the supply of electricity).

In Scotland many electricity lines are put in place on the basis of wayleaves. These are not registered and in effect are contractual arrangements between the relevant electricity company (or often in reality their predecessor in title) and the land owner. Typically they entitle the land owner to give notice requiring the electricity company to remove the line over that land owner’s land within the period specified in the wayleave. The statutory provisions equally apply where there has been a transfer of title so the successor land owner (who will not be bound by the wayleave) can give notice or where no wayleave exists at all (when a land owner can give notice requiring the electricity company to remove the relevant line). In all these circumstances the electricity company is entitled to apply for a necessary wayleave in accordance with the provisions of Schedule 4 of the Electricity Act 1989.
In this case Patersons of Greenoakhill gave notice to SP Transmission Limited requiring SP Transmission Limited to remove a stretch of line over land owned by Patersons of Greenoakhill. Scottish Power applied to Scottish Ministers for a necessary wayleave. If such an application is made timeously then the obligation to remove the line is suspended until the necessary wayleave application has been determined. In this case however the parties went into a period of negotiation and the application for the necessary wayleave was sisted (stayed) for a considerable period of time. Eventually the line in question was removed by Scottish Power as it was a line that was no longer required for their operations. In fact the removal of the line had been programmed for some considerable time, the issue being the timing of that removal.
If a necessary wayleave is granted then the land owner may have an entitlement to compensation under the Act. In this case no necessary wayleave had been granted but Patersons of Greenoakhill made a substantial claim for compensation nonetheless. The case was really concerned about whether or not there was any right to compensation and if so, on what basis. This argument was advanced by Patersons on three different bases, namely:-

1. That keeping the lines in place after the application for the necessary wayleave in itself constituted a necessary wayleave. Lord Glennie rejected this argument on the basis that this approach was clearly at odds with the statutory position. No necessary wayleave had in fact been granted.
2. That there was a right to compensation at common law as a result of additional expense caused to the Pursuers as a result of the “compulsory occupation” by Scottish Power in terms of the provisions of Schedule 4 to the Act. In effect the fact that Scottish Power had applied for a necessary wayleave entitled them to maintain the line in place pending determination of the application – this was equated to “compulsory occupation”. This was also rejected by Lord Glennie. Lord Glennie indicated it was difficult to identify from the pleadings any proper legal basis for the argument and that he did not consider any relevant arguments had been advanced to him.
3. The third and last line of argument which the Pursuers accepted was “a poor third alternative” was that there had been some form of implied continuation of the previous wayleave notwithstanding the fact that Patersons had given notice to bring that wayleave to an end. It was that notice in fact which resulted in Scottish Power making the application to Scottish Ministers for a necessary wayleave. Lord Glennie did not consider that the case put forward by the Pursuers on this basis was relevant particularly having regard to the sums claimed by way of compensation. However given the nature of the arguments Lord Glennie was prepared to allow the Pursuers, Patersons of Greenoakhill, an opportunity to amend their pleadings in this regard should they wish to do so.

In fact when the case called before him to decide upon further procedure Patersons made clear it was their intention to appeal principally in relation to Lord Glennie’s decision on the interpretation of the Act about whether or not a necessary wayleave had been constituted in all the circumstances of the matter ((a) above). Lord Glennie accordingly dismissed the case thereby clearing the way for that appeal to take place.
While this case may be thought to be essentially extremely technical and of limited relevance, the consequences are potentially significant. There are literally thousands of miles of electricity lines within the UK which operate within the statutory framework considered in this case. While applications for necessary wayleaves are relatively rare the outcome of this case (particularly in relation to what compensation may or may not be payable – an issue Lord Glennie did not get to the stage of addressing) may be significant.