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Electronic Communications Code - BT win at Tribunal

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A recent case at the Upper Tribunal has clarified whether landowners have the right to require the removal of electronic equipment from neighbouring land.

The Upper Tribunal ruled against landowners, confirming that they cannot demand the removal of electronic communications equipment installed on neighbouring land if it didn’t interfere with their ability to access their own properties when the equipment was installed.

It also held that, in certain circumstances, landowners have no ability to force comms operators, such as British Telecom plc (BT), under the Electronic Communications Code to pay for the removal of the equipment.

History of the case

In November 2011, BT installed a telecommunications cabinet on the edge of a footpath next to some cottages, access to which was unimpeded.

These cottages are now owned by Evolution (Shinfield) LLP (Evolution) and they are part of a development site with planning permission to build up to 1,200 homes, as well as a new road, allowing both vehicle and pedestrian access, and connecting the development to existing roadway.

However, this connection would run right across the land where BT’s cabinet is located - and moving the cabinet would cost an estimated £300,000.

Evolution sought an order to remove the cabinet at BT’s expense, based on Paragraph 38 of the Electronics Communications Code, which entitles landowners to require the removal of equipment on neighbouring land when it “interferes or obstructs a means of access” to and from their land.

The Upper Tribunal’s decision

Evolution argued that Paragraph 38 of the Electronic Communications Code extended to interferences or obstructions that may have occurred after the equipment was installed, as BT’s rights were subject to the neighbouring landowners’ right to create new access to their property. Evolution also argued that other rights from the Code aim to protect landowners’ ability to redevelop their land.

However, BT disputed this, arguing that the “means of access” implies a current physical situation, rather than a potential one.

The Tribunal agreed with BT, saying that a landowner cannot have a significant degree of control over the existing lawful use of neighbouring land. This meant that BT had successfully established that the rights of removal under Paragraph 38 of the Electronic Communications Code are limited to interferences or obstructions to access which exist at installation, not potential access. This decision has potential to severely limit the availability of development land available.

The Tribunal also found that the Code was not intended to impose the costs of removing equipment (where it didn’t obstruct access at the time of installation) on BT or other operators, rather than on those landowners who would benefit from the removal.

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