Is B4RN blackmailing me?

[erichafabee]

Background

I had had no dealings whatever with B4RN until last week, when I was presented with an arial photo of my land showing the planned route for a B4RN network trunk running across it and copy of the B4RN Wayleave Agreement [1]. It was explained that there is scope to propose adjustments to the route across my land and I was asked to review the agreement and route and decide if I was happy to sign it. When I asked for more detailed information I was referred to the B4RN website [5].

There was some pressure to decide quickly as it is projected as a community project and "the route has already been started" and I was "one of only two landowners on the route that had not yet agreed". I don't know if this is true . I was not advised to seek legal advice before signing. I was not informed that the resulting TelCo infrastructure would enjoy special, overriding, rights conferred by the Electronic Communications Act [2]. (Just background information - this pressure and lack of information it is not significant to the question of criminal law here)

On my initial, quick reading of the B4RN WayLeave Agreement I was initially satisified that it was not to onerous and I was minded to agree for the benefit of the community. However after some extensive research two things happened. Firstly, I decided that I very definitely did not wish to agree to the Wayleave, despite my desire to benefit the community, and secondly I came across the B4RN Wayleave Refusal policy [3] placed very prominantly on the B4RN landowner's web page [5] which shocked and horrified me as it threatens to informally, but very effectively, burden my land title with a punitive sur-charge if I don't give them what they want. Ironically the punishment is to the value of what they would have saved in construction if I gave them the wayleave for nothing!

I have been put in an extraordinaily stressful position:

• I am very fearful of the long term impact on my title if I agree.
• I am very fearful of the long term impact on my title if I refuse to agree.

The situation seems and feels like blackmail, but would it be seen a criminal under Theft Act 1968, Section 21?


My layman's analysis and questions

Is it an unwarranted demand?

The demand is that I give them a wayleave, and implicitly rights under the Electronic Communications Act for nothing. This seems totally unwarranted to me, but what would the crown think?

Is there a menace?

The B4RN Wayleave Refusal policy clearly threatens to informally, but very effectively, burden my land title with a punitive sur-charge if I don't give them what they want. It feels like a very dmaging threat indeed to me. Would the crown think so?

Do B4RN _believe_ they have reasonable grounds for making the demand, and that the use of the menaces is a proper means of reinforcing the demand?

Only if B4RN claim split-personality or incompetence: Their entire proclaimed ethos and publicity on their website recognises that the network is built on willing cooperation and generosity of landowners. The use of threat and coercion is not compatible with such a belief in my opinion. But how would the crown view this?


So what do peeps think?


References:

1. B4RN Wayleave Agreement: https://b4rn.org.uk/wp-content/uploa...v2.3-11.19.pdf
2. Electronic Communications Act: https://www.legislation.gov.uk/ukpga...nications-code
3. B4RN Wayleave Refusal policy: https://b4rn.org.uk/wp-content/uploa...v1-13.3.18.pdf
4. B4RN landowner's web page: https://b4rn.org.uk/resources/
5. B4RN website: https://b4rn.org.uk/
6. Theft Act 1968, Section 21: https://www.legislation.gov.uk/ukpga/1968/60/section/21

[des8]

IMO you are over thinking the situation.

They want a free wayleave.

You don't want to give them a wayleave

So don't sign the agreement.

To persuade you they point out that if you (or subsequent landowner) want to take advantage of the provision of super duper broadband you will have to pay for it. Your choice.

That is not blackmail nor menaces.

[erichafabee]

That is not blackmail nor menaces.

They very clearly intend to impose a burden on landowners to inform future buyers of a punitive (non-economic-based) sur-charge - this aspect I consider to be a severe menace: - it will damage the value of the property - much as a formal charge on title does.

[des8]

Read sec21 of the Theft Act 1968 carefully.

The request for a free wayleave is not an unwarranted demand.
A warning of the possible consequences if you decline will not be construed as "menacing"

Just my opinion

[erichafabee]

Regarding "unwarranted": How is this defined or interpreted?

For example: If your neighbour wants more space for a jacuzzi and they demand that you grant them a charge on your land allowing them and their successors to keep it in your garden in perpetuity, for free, would that be "a warranted demand"?

[des8]

UNWARRANTED means unjustified, and a REQUEST is not a demand.

B4RN are putting in a fast broadband connection to a community who come together and carry out a lot of the installation to save costs, often of many tens of thousands of pounds for each member.
You have been asked to join but have declined.
If a member of the community declines to join that is fine, but they are warned that they cannot later take a connection to the system without paying their share of what it would have cost if the work had been carried out on a commercial basis (at least I think that is how they calculate the charge for joining late)


Perhaps the supply of fast broadband won't bring you any advantage/ your not interested/ you already have your own satellite broadband in which case just decline, or negotiate a fee to allow them access through your land.

[erichafabee]

I have not declined anything at all - yet. The penalty quite explicitly goes signifigantly beyond a straight commercial basis. I'd like to try and focus on each legal criterium in turn, starting with:

What is the legal distinction between WARRANTED and UNWARRANTED?

[islandgirl]

How can they burden your land deeds with anything?

[erichafabee]

How can they burden your land deeds with anything?

By threatening to surcharge any future owner my estate becomes obliged to "remember" this and notify the incoming owner of the surcharge or open itself to being sued by an incoming owner. Its not a formal charge on the title - but just as effective.

[islandgirl]

I have read the refusal policy. The issue only applies if the new owner of the house wishes to connect to the broadband. Yes you may have to declare this when you sell but if someone wants to use a different provider (I assume you already have broadband from BT or another supplier) then it will never be a problem. You are not open to being sued. The policy says if the company is questioned they will refer the matter to you and if you do not tell the person what the deal is they will tell them. How can you be sued? I would not worry about it at all - if you want to grant it graant it and if not, don't. I think there would be more to worry about in pressure from neighbours than pressure from this company who may well not exist in 10 years time!

[erichafabee]

I have read the refusal policy. The issue only applies if the new owner of the house wishes to connect to the broadband. Yes you may have to declare this when you sell but if someone wants to use a different provider (I assume you already have broadband from BT or another supplier) then it will never be a problem. You are not open to being sued. The policy says if the company is questioned they will refer the matter to you and if you do not tell the person what the deal is they will tell them. How can you be sued? I would not worry about it at all - if you want to grant it graant it and if not, don't. I think there would be more to worry about in pressure from neighbours than pressure from this company who may well not exist in 10 years time!

So why do you think an estate is not be open to being sued if it failed to declare this threat of sur-charge to incoming owner? Please give the legal basis for your answer. (actually it is clearly dis-engenious sophistry to even claim that an "extra" cost was incurred at all, when it is actually a potential saving that was not gained!)

I have BT copper @~1.5mbs at the Jack (and in the house as well since I removed the bellwire)

That last issue you raise is a rather huge one: B4RN are a CIC and although the value of the assets donated to them by the community are therefore ring-fenced for other CICs or charities they are not ring-fenced for the community of those who donated to it. Furthermore the TelCo Act means that landowner's will have drastically limited power to kick an incoming commercial operator off their land or attempt to get any proper commercial value for what they freely gave to their community. So the "community" will be left with a commercially operated network with rights in-perpetuity over all their land and effort, and will be free to charge commercial rates. B4RN's lack of any obvious effective poison-pill to keep the telco assets for the community benefit is particularly alarming.

Anyway. Back to the subject of this post. Is this blackmail? Starting with the first hurdle:

Is this a Warranted or Unwarranted demand?

(I will open a separate thread asking for clairification on the legal definition or interpretation to inform this specific case)

[islandgirl]

a) I said that you will probably have to declare it "yes you may have to declare it" is the clue
and
b) The quote about them telling the potential new owners is from your document
All you have to do is declare it. And if the new person is happy with BT voila, problem solved.
I agree with your last paragraph - all the more reason not to grant a wayleave?

[R0b]

Think this is all a bit of a nonsense, and I agree with other posts that this is not blackmail based on the circumstances.

Whilst a demand can be interpreted broadly, in my view there has to be an air of insistence or forcefulness in order for it to be considered as such i.e. someone telling you that you must hand over £50 unlike a request which would be akin to seeking a permission or consent - Des has already pointed this out and I agree with him, that this is merely a request from B4RN not a demand, and the refusal policy says as much (that landowners are rightfully entitled to adopt a refusal position).

If you can't pass the first hurdle then everything else falls away and is irrelevant since there is no blackmail.

Fail to see how B4RN explaining to you that there might be financial consequences if you refuse to sign the wayleave agreement amounts to an unwarranted demand. This is typical business practice across any industry and you could say that in doing so, you have been fully informed about the potential impact - there will be people in this world who will whine and moan saying that they never really knew of the consequences of failing a wayleave if they changed their mind in the future and then say they would have agreed to it had they known.

In my view, this is no different to pre-ordering a phone for a reduced retail price or investing in a business who is offering discounted shares. If you don't take up the offer, then expect to pay the commercial price. It would be the same if you wanted a virgin line and they had to dig out a trench and lay a line to your premises, you would pay the commercial rate for doing so.

Islandgirl also makes very valid points but unless there's something in your deeds obliging you to disclose the current status of the broadband to any new purchaser, you don't have to declare jack. The obvious caveat to that is where the new purchaser has formally raised it as part of their inquiries and you mislead them, in which case yes you can be sued in the event that what you've told the purchaser was a misrepresentation.

The final point to note is that where the defence of a warranted demand is made, the burden of proof shifts to the prosecution to show that the demand was unwarranted. That in itself adds an extra layer of difficulty in not so clear cut cases.

Anyway, this is all academic unless you intend on making a private prosecution or you manage to persuade the CPS to bring a prosecution against B4RN for blackmail, which I should think is next to zero chance.

Have you thought about engaging a lawyer to negotiate the terms of the wayleave as a compromise? Of course that would be a pointless exercise if B4RN are telling you it is on a take it or leave it basis.