Evolution (Shinfield) LLP and others v British Telecommunications plc

Electronic Communications Code – Development – Removal of apparatus – Claimant developers making reference under para 40(6) of the new Electronic Communications Code claiming right to require removal of respondent’s telecommunications cabinet without charge to themselves – Whether neighbouring landowner having right to require removal of apparatus from route of proposed new access to development site – Reference dismissed The claimants were the registered freehold owners of a large development site to the west of the Hollow Lane roundabout at Shinfield, on the southern fringe of Reading. In November 2012, before the claimants acquired the site, planning consent was granted for a major new housing development providing up to 1200 new homes, a community centre, a shop, additional primary school facilities and a new relief road. Vehicular and pedestrian access would be obtained from the roundabout. A new exit was to be constructed over the current footway and over adjoining land which had been two cottages but now formed part of the claimants’ development site. In November 2011, pursuant to street works rights, the respondent installed a telecommunications cabinet on the footway in front of the cottages (without impeding access). It was on the route of the proposed new exit from the roundabout. Capacity and safety considerations prevented the redesign of the roundabout to avoid the cabinet and it had to be moved to a different location to enable the development to proceed in accordance with the planning permission. Before the introduction of the new Electronic Communications Code on 28 December 2017 (section 106 and Schedule 3A of the Communications Act 2003), the claimants would have had to meet the expense of relocation, either under regulations made pursuant to section 85 of the New Roads and Street Works Act 1991 or under para 20 of the old Code. However, the claimants made a reference under para 40(6) of the new Code claiming that they had a right to require the removal of the respondent’s cabinet without charge to themselves. The claimants relied on the right conferred by para 38 by which the owner or occupier of neighbouring land might require the removal of apparatus which was kept on other land and which interfered with or obstructed a means of access to and from the neighbouring land. The respondent argued that para 38 applied only to a means of access in existence when the relevant electronic communications apparatus was installed, rather than to any access which might be created in future. Further, there was no previous access to the roundabout over the part of the footway on which their cabinet was situated. Held: The reference was dismissed. (1) As a matter of language, the reference in para 38(2) of the Code to apparatus which “interferes with or obstructs a means of access to or from neighbouring land” referred to an existing means of access, rather than something potential. The expression was required to cover means of access of all types which might be obstructed in a variety of circumstances or locations. There was no need to read the choice of words as implying an extension of the right to cover an inchoate route which did not exist and was not obstructed when the apparatus was installed. The word “means” implied a current physical state of affairs rather than something more abstract. (2) Paragraph 13 of the Code prevented an operator from installing apparatus or exercising rights which interfered with or obstructed any means of access to other land. For installation or the exercise of rights to interfere or obstruct in that sense it would be necessary for there to be an existing means of access either in use or sufficiently identified and established to enable the interference or obstruction to be apparent. Paragraph 38 was not so restricted and involved any interference or obstruction which might arise after the installation or other work had been undertaken and completed. The paragraphs were intended to operate consistently with one another. They ensured (subject to agreement otherwise) that existing means of access to and from land took priority over operators’ street works rights, and that priority was protected by a right to require removal. The statutory language did not suggest that the prohibition in para 13 or the right of removal in para 38 related to prospective or future means of access. (3) If the claimants’ case was correct, para 38(2) would enable the owner of land to insist that a change be made in the use of neighbouring land (by the removal of electronic communications apparatus lawfully present) at the expense of the occupier of that land (the operator), simply in order to enable the owner to create a new access which allowed a different use to be made of his own land. That right would exist and be exercisable apparently without consideration of the scale of the expense, or the extent of the adverse consequences for the neighbour’s lawful business, since the para 38 right of removal was not controlled by any test of need or any balancing of the rights and interests of the neighbour, the operator and the general public. On the claimants’ case a lawful occupier of land (including an operator) who might have been using that land for many years, could be required to compensate their neighbour for the neighbour’s inability to make a more profitable use of their own land. In all the circumstances, the condition in para 38(2) was not satisfied and the claimants did not have the right to require the removal of the respondent’s apparatus since it did not interfere with or obstruct “a means of access” in the required sense. (4) The claimants’ alternative case was that their proposed development required the widening of the existing point of access to accommodate the new public highway. The respondent’s cabinet would require to be moved to enable the access to be widened and so it interfered with or obstructed the existing access to the claimants’ land. However, when the respondent’s apparatus was installed it did not obstruct any means of access to the claimants’ land. The expected obstruction did not arise from any modification of an existing access, but from the creation of a wholly new access in a different location. The two routes would overlap only to a limited extent. Brie Stevens-Hoare QC and Andy Creer (instructed by Freeths LLP) appeared for the claimant; Shaen Catherwood (instructed by BT Legal) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Evolution (Shinfield) LLP and others v British Telecommunications plc