Untold annoyance has been caused by cable TV companies virtually digging up back gardens regardless of the feelings of house owners or of the traffic congestion which can be caused while work is carried out. Can they do this?
Cable TV companies are granted licences to install telecomms apparatus over and under land by the Secretary of State for Trade & Industry under section 7 of the Telecommunications Act 1984.
To determine whether a company can install its apparatus under a bit of land, lawyers must be satisfied the land is a street which is a maintainable highway as defined in the Public Utilities Streetworks Act 1950. If the answer is yes the cable company may install its apparatus without further ado.
On some occasions, it may also be necessary to define 'a highway'.
A highway is a way over which a public right of passage exists – it can limit the class of traffic but not a class of person. And a maintainable highway is defined as “a highway maintainable or repairable by inhabitants at large”.
Using this definition, a company will have the right to carry out work on a public road or a public footpath. The difficulty arises where the company wishes to save time and money by taking a short route and laying apparatus under, for example, a bridleway.
While a bridleway seems to fall within the definition of a street, the 1984 Act expressly specifies that a “footpath or bridleway that crosses, and forms part of, any agricultural land, is not a maintainable highway”.
Where the land is not a street which is a maintainable highway under the telecommunications code, the cable company will need the written agreement of the owners of the land (such as a bridleway) before it can carry out any of the work authorised by the 1984 Act.
And if such work interferes or obstructs any means of entering or leaving land belonging to another party, the cable company will also require written agreement from that other party to carry out work.
Under the telecommunications code, if the value of land is likely to be depreciated by the removal of any telecomms apparatus which is installed, the cable company will need to pay compensation equivalent to the amount of depreciation.
Where consents are required, it is possible to strike a deal with the cable company so that written agreement is given subject to a cash lump sum. Cable companies usually work to strict timetables and it is often worthwhile for them to pay a lump sum rather than lay cables along a longer route.
However, where an owner refuses to give permission it is possible to dispense with the further required agreement by giving the owner 28 days notice and then applying to the court for an order dispensing with the agreement.
The court should order the dispensing of the agreement if:
(a) “It is satisfied any prejudice caused by the order is capable of being compensated by money;
(b) In determining the extent of the prejudice and the weight of that benefit, the court considers all the circumstances and the principle that no person should unreasonably be denied access to a telecomms system”.
If the court dispenses with consent of the owner, the order would include “such terms with respect to the payment of consideration in respect of the giving of the agreement as the court consider fair and reasonable and such terms as appear to the court appropriate for ensuring that the owner/occupier from time to time bound by the rights to which the order relates are adequately compensated”.