The Upper Tribunal has confirmed that landowners cannot procure the removal of electronic communications apparatus installed on neighbouring land where this did not interfere with a means of access to their property at the date of installation.
The Upper Tribunal held that, in these specific circumstances, landowners cannot compel operators to meet the cost for the removal of apparatus.
In November 2011 British Telecommunications plc (“BT”) installed a telecommunications cabinet on the edge of a footway neighbouring some cottages. The cabinet did not impede access to and from the cottages.
Evolution (Shinfield) LLP (“Evolution”) is now the freehold owner of the cottages which form part of a development site which has the benefit of planning consent for the construction of up to 1,200 homes. The planning permission provides for a new vehicular and pedestrian access way connecting the development to the road over the land on which the cabinet is situated. Works to relocate the cabinet are estimated to be at a cost of nearly £300,000.
Evolution sought an order for the removal of the cabinet at BT’s expense by virtue of Paragraph 38 of the Code which entitles land owners to require the removal of apparatus on neighbouring land where this “interferes or obstructs a means of access” to and from their land.
Evolution argued that Paragraph 38 extended to interferences or obstructions which may arise after apparatus installation as operators’ rights were subject to neighbouring landowners’ right to create new access. Evolution pointed to other Code rights which seek to protect land owners’ ability to redevelop in support of this position.
BT countered this suggesting that the “means of access” (our emphasis) implies a current physical state of affairs rather than a potential state of affairs.
The Tribunal agreed with BT that a landowner cannot have a significant degree of control over the existing lawful use of neighbouring land. BT thus succeeded in establishing that the rights of removal under Paragraph 38 are limited to interferences or obstructions to means of access which exist at installation, rather than potential access.
The Tribunal further found that it was not intended that the Code should impose the costs of removing apparatus (where this did not obstruct access at the time of installation) on operators rather than the landowners for whose benefit the works would be undertaken.
Full judgement available here.