Telecommunications Act 2003 - how to seek an Order

[Guest]

I have a property with limited access in a very rural area. The electricity and the telephone companies both have cables flying over the top of MY forecourt where I park my cars. Neither company have wayleaves and none of the cables flying over my access serve my property. The cables run from a pole in my neighbour's garden to the North straight over my forecourt directly to my next door neighbour's house to the South. They do NOT serve my house. My neighbour to the South has a telegraph / electricity pole in his own garden, and therefore there is absolutely no need for the cables serving his property to fly over my access; they could fly directly from his pole in his garden to his house. Neither company has a wayleave over my property and they both admit that they do not have one.

In the past it was less of a problem. But today, Health and Safety Regulations forbid unloading beneath cables. This now means that anything which I want to be delivered to my house cannot be delivered because the delivery companies refuse to unload under the cables, especially if using a HIAB or similar, for fear that their machinery could become entangled in the cables. My forecourt is not very deep and trucks can only unload directly below the cables. The road fronting the forecourt is a narrow lane and therefore a truck cannot unload in the road as it is a single file lane. A truck would completely block the traffic. I therefore can no longer get deliveries of things like sand, or gravel or bricks or paving slabs.

But in addition to that, the pigeons find these cables an ideal place to perch and spend all day defecating down on my cars below. There is usually a revolting mass of guano spread over the cars unless I keep them parked in the garage all the time, which is very inconvenient because I use the garage for other things as well.

Under the Communications Act 2003 §40 and §44(1) and 74 (2)(b), if there is no wayleave in place and the cables are preventing me from using my property for business, which they are, I have the right to obtain an Order from the Court to make the companies remove the cables. The cables can easily be re-routed from the pole in the neighbour's garden and / or be routed along the other side of the road where most of the remaining poles are already located along the road as it is open countryside. There is no need for the cables to fly over my land.

My question is simply how do I apply for a Court Order and on what form ? Do I seek an injunction on Form N16 or do I make an application for an order on Form N244 ?

If anyone can advise me, I would be most grateful.

[des8]

Form N16A

First approach the utility companies in writing requesting they move the cables.
If that has already been done and been refused tell them you are going to make application for an order r with an adverse costs order

[Winfred]

Thanks for the clarification. I am very grateful.

I have been in discussion with them for nine months about this, threatening to take action. They keep making promises, but nothing ever happens . And then last week a team arrived and put up a new cable across my forecourt, telling me that they know nothing about the complaint at all. When I insisted that they had no right, they called the Police !

All efforts to contact them since have brought no response. So I have little alternative but to go down the Court route.

The only outstanding question is what I do about the electricity company who also have cables crossing my forecourt. They have also made lots of promises - between the two companies, telephone and electricity, there have been 25 different site visits, each one not knowing what the previous had done ! There is a perfectly viable alternative on the other side of the road where there are just open fields and no obstructions.

I am therefore wondering whether I should issue a joint Form N16A as joint defendants. The actual poles in the two neighbouring gardens both belong to the electricity company, which also does not have a wayleave, not the telephone company. Both companies acknowledge that they have no wayleave and both have asked for one which I have refused.

Can I therefore issue a joint form N16A or must I issue separate ones incurring separate costs ?

[des8]

IMO it will take separate applications as they are separate concerns

[Winfred]

I feared you might say that !

My thought was that they are both using the same poles, although the pole belongs to the electricity company.

I had also thought that, if I start with an N16A against the electricity company, I could argue that they are allowing the prohibited use of the pole by the telephone company and should not allow them to do so without a wayleave, effectively an injunction against the telephone company by proxy. Interestingly, the telephone company argued in the past that they were not allowed to connect their service cable to my neighbour's house to the electricity pole in that same neighbour's garden ! They argued that as the pole belongs to the electricity company, they had no right to use it without permission. I therefore asked the electricity company to allow the telephone company to use the pole ! Whilst it defeated their argument, it has still not resulted in any change, needless to say (except more visits, each time by different people of course).

[des8]

So if you are successful against the electricity utility they will remove the cables from over your property.
They won't necessarily remove the pole, nor instruct the telecommunications company remove their cable.

[Winfred]

Yes, you are right. But I hoped that I could seek an order against the electricity company which might include a prohibition from allowing unauthorised use of their pole . I am in a dilemma as how best to proceed.

[des8]

Difficult for you to obtain an injunction to prevent a company allowing unauthorised use of their property by another company.
It is nothing to do with you, whether or not they have permission.
You need the injunctions to stop them trespassing.
There are two companies trespassing, so two injunctions

Also do not understand how Communications Act 2003 applies in this case (especially to DNO)
Electricity Act 1989 schedule 4 paragraphs 6,7,8 & 9 may be more relevant

[Winfred]

Thanks again for the advice and sorry for the delay in answering but I have been unable to respond for technical reasons.

I was not suggesting that the Communications Act is relevant in the case of the electricity company, SSEN only in respect of BT Openreach. Your reference to the Electricity Act may be useful, however. I have not digested it all, but as far as I can see, Schedule 4 appears to refer to streets, whereas in my case it is my private land, not the street at all. There are poles on the other side of the lane on the Council's bank and there are poles in the gardens of my two neighbours' between which the cables for both companies fly over my forecourt. In the Act, there is mention of complaints being made to the Gas and Electricity Markets Authority which I need to investigate further but I suspect that is Ofgem and more to do with consumer supply than infrastructure.

Interestingly, SSEN have accepted that they require my agreement to fly a cable over my land as they have no wayleave. It is Openreach who have been problematic. Before I take further action, I am wondering whether my MP should be approached to see if he can get something done.

[des8]

Letters to both CEOs may be more productive than to your MP

[Winfred]

That is worth trying before commencing proceedings.