The UK Upper Tribunal (Lands Chamber) recently decided the case of Evolution (Shinfield) LLP and others v British Telecommunications Plc  UKUT 127 (LC)
The claim was commenced by a consortium of developers who sought an order for the removal of a telecoms cabinet from a publicly maintained footway. The cabinet belonged to BT and houses fibre optic cables and other electronic communication apparatus.
The consortium are the freeholders of a large development site. Planning permission was granted for a major new housing development comprising 1,200 new homes, a community centre, a shop, additional primary school facilities and a new relief road. Clearly this was a ‘big deal’.
The site already had vehicular and pedestrian access but a new exit was to be constructed over the current footway. BT’s telecoms cabinet is sited on the route of the proposed new exit. To enable the development to proceed in accordance with the planning permission granted, the telecoms cabinet and its associated ducting and joint boxes had to be moved.
The consortium asked BT to move the electronic communication apparatus. BT produced a specification of works, estimated it would take 32 weeks to complete and would cost almost £300,000.00.
Before the new Electronic Communications Code (Schedule 1 to the Digital Economy Act 2017) (the “Code”) came into force, the consortium would have had to meet the relocation expense either under regulations made pursuant to Section 85 of the New Road and Street Works Act 1991 or under paragraph 20 of the Code’s predecessor (“the Old Code”).
The new Code sets out the basis on which electronic communications operators may exercise rights, known as “Code rights”, to deploy and maintain electronic communications apparatus on, under or over land. Part 4 is particularly interesting – it provides an alternative means of acquiring Code rights if they cannot be agreed, namely by the imposition of an agreement by an order of the Court under paragraph 20 (in England & Wales, this is done by the Upper Tribunal). A defence to the making of this order under paragraph 20 is provided by paragraph 21(5) where the relevant person “intends to develop all or part of the land to which the Code right would relate, or any neighbouring land, and could not reasonably do so if the order were made”.
Part 5 of the Code contains provisions concerning the termination and modification of Code agreements. By paragraph 31, a site provider who is a party to a Code agreement may bring the agreement to an end by notice if one of the ground in sub-para. (4) can be demonstrated. One of those grounds is that the site provider intends to redevelop all or any part of the land to which the Code agreement relates, or any neighbouring land, and could not reasonably do so unless the agreement comes to an end (para. 31(4)(c)).
An intention to redevelop land can thus be a valid reason to refuse to confer Code rights and also as a valid reason to terminate Code rights.
Part 6 of the Code makes provision about cases in which a person has the right to require the removal of electronic communications apparatus, and about how that right can be enforced. Part 6 also includes a procedure by which a person can discover whether apparatus is present on land pursuant to a Code right.
Paragraph 37 of the Code in particular identifies five circumstances in which a landowner may require the removal of apparatus from their own land. These include where the landowner has never been bound by a Code right allowing the operator to keep the apparatus on the land, where a right has come to an end, and where apparatus is no longer used.
In contrast, paragraph 38 is concerned with the rights of owners or occupiers of neighbouring land to require the removal of apparatus from land belonging to someone else.
The consortium claimed that under the new Code, they have the right to require BT to remove the telecoms cabinet and its associated ducting and joint boxes without charge to themselves. The consortium relied on the right conferred by paragraph 38 of the Code because it “interferes with or obstructs a means of access” to and from the neighbouring land.
Naturally, there were arguments put forward by both parties in the matter. In the end, the Tribunal decided that BT was only obliged to relocate the telecoms cabinet and its associated ducting and joint boxes interfered with an existing right of access, not a prospective one.
If you are working on a project that might be affected by the any of the issues highlighted above or generally would like further information on the above, please do get in touch.
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Tariq Mubarak is one of the top property solicitors in England and he has helped hundreds of clients achieve success with their property goals.
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