Gone are the days where "statutory undertakers" providing utilities meant the gas, water and electricity boards. What we commonly understood as "utilities" is changing fast as the market for them broadens.
Alongside traditional utility providers we now have multiple telecommunications, data, micro energy, storage, EV and other applications. Supplies are being provided by new and alternative market entrants (like Amazon and Apple) as well as private suppliers.
The law is failing to keep pace with all this technological innovation. A typical legal precedent or development agreement is likely to refer to "statutory undertakers" carrying out "statutory obligations". The drafting is likely to be much the same as it would have been 20 years ago. Yet despite these terms being fairly commonplace there is no conclusive legal definition of what they mean. Instead, lawyers have relied upon custom and general understanding. But as these lines of understanding have become more blurred practitioners are seeing more challenges against applying the terms to a wider range of utilities. Crucially, these challenges can be made against the exercise of rights or reservations that are essential to getting property developments completed.
Going forward, developers should ensure that they and their advisors pin down what is intended to be covered by the grant or reservation of utility rights or risk the consequences of challenges.
The new energy paradigm: will utilities be replaced by newcomers? Last week a panel of leading energy experts warned utilities that they must adapt to the new energy paradigm or suffer the consequences. And their stake in the marketplace could be under threat from an unlikely source. Ex-energy secretary Sir Ed Davey has said that the future leaders of the energy sector either don’t yet exist or are active in market outside of power. With the likes of Apple, Amazon and even IKEA owning significant renewables portfolios, could consumers soon be picking up a few kilowatt hours alongside their new bookcase?