2017 Electronic Communications Code

An application by developers has recently been dismissed by The Upper Tribunal (Lands Chamber) after the developers sought an order, under paragraph 40(6) of the above code for the removal of electronic communications apparatus from a publically maintained footway, adjacent to a roundabout. The developer also required the operator to pay for the removal.

The developer had obtained planning permission for a development, which incorporated an exit over the footway. The apparatus needed to be moved to allow the construction of the exit, which was crucial to the development. The Tribunal needed to decide who, either the developer or the operator of the apparatus, would need to pay for the relocation costs.

Paragraph 20 of the old Code would have required the developer to pay the cost, however, and relying on paragraph 38 of the Code the developer argued that it was the operator’s responsibility to remove the apparatus at the operator’s cost.

It was argued by the operator that the wording “which interferes with or obstructs a means of access” in the first condition in paragraph 38 only applied to any access already in existence when the apparatus was installed rather than any future access. Although the footway was already existing the exit required by the developers was not.

The developer’s argument was that, as the base course of a new road leading to the boundary of the developer’s site was already being constructed by the time the Code was introduced, although not over the footway, access to the site was already in existence, and therefore paragraph 38 was engaged.

It was agreed with the operator that in this situation the new road was not “existing” and therefore the developer could not rely on their argument.

Author: Michele Jackson