Articles

Going Public - Use of streets for Electronic Communications Apparatus 20 October 2021

Oliver Radley Gardner QC and Tricia Hemans 

Falcon Chambers 

1. So far, the Electronic Communications Code[1] has produced lively litigation in the Upper Tribunal (Lands Chamber), both as a tribunal proper and  in its guise as the County Court, settling key points of principle and valuation that have preoccupied the minds of property professionals since the Code appeared in draft form.
2. All of those cases have to date concerned privately-owned land.
3. This short paper is intended to draw attention to the lesser-litigated parts of the Code that follow behind Part 6 of the Code, with a  focus on Street Work Regime in Part 8.
4. The reason for that focus is that the use of streets, street furniture, and the streetscape generally, to host microcell sites and distributed antennae systems, are significant for the purpose of providing micro-support to macro-(mast) installations. They may also in due course replace the need for rooftop mast infrastructure in urban settings altogether for at least some operational purposes.

The ”Target” of the Regime

5. “Street Works” relate to a “street”. Street is defined in two places within the Code.
6. A general definition is found in paragraph 108(1) of the Code which provides that within the Code:

“street”—

(a) in relation to England and Wales, has the same meaning as in Part 3 of the New Roads and Street Works Act 1991, and

(b) in relation to Northern Ireland, has the same meaning as in the Street Works (Northern Ireland) Order 1995 (SI 1995/3210 (NI 19)).

7. A more detailed definition is set out in Part 8 of the Code which deals with the conferral of street work rights and their exercise. Within that part, paragraph 57 provides:

In this Part of this code—

…

“street”  means a street in England and Wales which is a maintainable highway (within the meaning of Part 3 of New Roads and Street Works Act 1991), other than one which is a footpath, bridleway or restricted byway that crosses, and forms part of, any agricultural land or any land which is being brought into use for agriculture.

8.  Under section 48 of the New Roads and Street Works Act 1991 (the “1991 Act”), it is provided that:

(1) In this Part a “street” means the whole or any part of any of the following, irrespective of whether it is a thoroughfare—

(a) any highway, road, lane, footway, alley or passage,

(b) any square or court, and

(c) any land laid out as a way whether it is for the time being formed as a way or not. Where a street passes over a bridge or through a tunnel, references in this Part to the street include that bridge or tunnel.

(2)The provisions of this Part apply to a street which is not a maintainable highway subject to such exceptions and adaptations as may be prescribed.

9. Both paragraphs 108(1) and 57 of the Code refer to the 1991 Ac. However, s57 qualifies the definition of street as set out in the 1991 Act by stating that a street (a)  is a maintainable highway and (b) is not a footpath, bridleway, restricted byway that crosses or one which forms part of any agricultural land or land to be brought into use for agriculture.
10. Part 3 of the 1991 Act sets out the requirements for street works, including how they are to be registered, and so on. “Street works” are defined under the 1991 Act, section 48(3).

(3) In this Part “street works” means works of any of the following kinds (other than works for road purposes) executed in a street in pursuance of a statutory right or a street works licence—

(a)placing apparatus, or

(b)inspecting, maintaining, adjusting, repairing, altering or renewing apparatus, changing the position of apparatus or removing it,or works required for or incidental to any such works (including, in particular, breaking up or opening the street, or any sewer, drain or tunnel under it, or tunnelling or boring under the street).

(4)In this Part “undertaker” in relation to street works means the person by whom the relevant statutory right is exercisable (in the capacity in which it is exercisable by him) or the licensee under the relevant street works licence, as the case may be.

(5)References in this Part to the undertaker in relation to apparatus in a street are to the person entitled, by virtue of a statutory right or a street works licence, to carry out in relation to the apparatus such works as are mentioned in subsection (3); and references to an undertaker having apparatus in the street, or to the undertaker to whom apparatus belongs, shall be construed accordingly.

The Rights

11. This dovetails with the Code regime for highways. The introduction to Part 8 of the Code in paragraphs 56(a) and (b), states that it is concerned with the conferral and exercise of “street work rights”. Under paragraph 59(1) of the Code, the street works rights replicate some but not all of the standard code rights under the General Regime in Part 2 of the Code.
12. Those rights are as set out in paragraph 59(1) of the Code:

(a)a right to install and keep electronic communications apparatus in, on, under, over, along or across a street or a road;

(b)a right to inspect, maintain, adjust, alter, repair, upgrade or operate electronic communications apparatus which is installed or kept by the exercise of the right under paragraph (a);

(c)a right to carry out any works in, on, under, over, along or across a street or road for or in connection with the exercise of a right under paragraph (a) or (b);

(d)a right to enter any street or road to inspect, maintain, adjust, alter, repair, upgrade or operate electronic communications apparatus which is installed or kept by the exercise of the right under paragraph (a).

13. Sub-paragraph 2 explains that:

(2)The works that may be carried out under sub-paragraph (1)(c) include—

(a)breaking up or opening a street or a road;

(b)tunnelling or boring under a street or a road;

(c)breaking up or opening a sewer, drain or tunnel

14. As to sub-paragraph 59(2)(c), this must be read in conjunction with paragraph 102 of the Code, limiting the rights to do works to a “relevant conduit” or a “public sewer”. The definition of a “relevant conduit” refers to section 98(6) of the Telecommunications Act 1984, which states:

In this section “relevant conduit” means—

(a)any conduit which, whether or not it is itself an electric line, is maintained by an electricity authority for the purpose of enclosing, surrounding or supporting such a line, including where such a conduit is connected to any box, chamber or other structure (including a building) maintained by an electricity authority for purposes connected with the conveyance, transmission or distribution of electricity, that box, chamber or structure; or

(b)a water main or any other conduit maintained by a water authority for the purpose of conveying water from one place to another; or

(c)a public sewer; or

(d)a culvert which is a designated watercourse within the meaning of the Drainage (Northern Ireland) Order 2006.

15. There are two significant differences between the General (under Part 2) and the Street Works Special Regime (under Part 8) that are worthy of note:
    1. The street work rights are automatically vested in the operator for statutory purposes under paragraph 58 of the Code. There is no need separately to enter into an agreement, voluntary or compelled, before the rights are acquired.
    2. No consideration is payable for those rights, which are already “vested” by statute. This was also the position under the Old Code: GEO Networks Ltd v The Bridgewater Canal Company Ltd [2010] EWCA Civ 1348, at [27], and was the position adopted by the Law Commission in Law Com 336, at 7.82.
16. Paragraph 85 compensation for injurious affection to neighbouring land is however expressly applied to street works: see paragraph 85(1).

The Extent of a Street

17. On its face, the code right under paragraph 59(1)(a) is limited to works in relation to a road or a street (as defined). This section will take the “highway” portion of that definition for the purposes of giving a worked example of what its possible width might be.
18. Insofar as the works involve installations in the subsoil outside the ownership of the highways authority, it would seem that, to that extent, rights are exercisable under the general regime (that is, Part 2 of the Code) and not the Street Works Special Regime under Part 8. It may therefore be that in some cases, the nature of the installation will require compliance with both regimes in relation to separate parts of the installation.
19. However, interesting questions will arise as to what is to be treated as part of the highway for these purposes. Paragraph 57 provides a list of those things which do not constitute a street. However, what is included in the meaning of street is limited to the reference to a maintainable highway within the meaning of Part 3 of the 1991 Act.
20. It is clear that the regime does not apply to private highways. This is because paragraph 57 defines street as a  “maintainable highway”within the meaning of the 1991 Act. The 1991 Act states in section 86(1) that “maintainable highway” means a highway maintainable at the public expense. Indeed the common law position is that a highway must be open to the public at large and not merely a way which is open merely to owners, occupiers and lawful visitors of particular properties.  However, the Supreme Court has held that the meaning of “highway” is context-specific, and that there is no governing common law meaning confining that word to the “top two spits” of the road (as per Lord Denning M.R. in Tithe Redemption Commissioners v Runcorn UDC [1954] 1 Ch 383): see London Borough of Southwark and another v Transport for London [2018] UKSC 63.  Indeed, Section 328(8) of the Highways Act 1980 tells us, as a means of interpreting that Act, what will, or may be, included within the meaning of the term “highway” for the purposes of that Act. However, no light is shed on what the defining characteristics of a highway might be.
21. A highway might be defined by the nature of the public rights that exist over it or to describe the physical structure over which those rights exist. This is the distinction between the right of way and the way over which there is a right.
22. While highway had no single meaning, the statutory vesting of proprietary interests in highways conferred ownership only of that slice of the land over which the highway ran, viewed in the vertical plane, as was necessary for its ordinary use, including its repair and maintenance. That slice of the vertical plane included, of course, the surface of the road over which the public had highway rights, the subsoil immediately beneath it, to a depth sufficient to provide for its support and drainage, and a modest slice of the airspace above it sufficient to enable the public to use and enjoy it, and the responsible authority to maintain and repair it, and to supervise its safe operation.
23. It does seem that the ownership that is vested is “such property and such property only as is necessary for the control, protection, and maintenance of the street as a highway for public use”: see Tunbridge Wells Corporation v Baird [1896] A.C. 434 at 442, per Lord Herschell.
24. Following the logic of that position through to its logical conclusion, it may therefore be that the Street Works regime permits the installation of apparatus not just on or within the surface of the street itself, but, depending on context, “over” that street using pre-existing street furniture that has been installed by the highways authority pursuant to its ownership of the highway itself.
25.  This could potentially extend to street furniture such as street lights, road signs, traffic lights barriers and railings, if and to the extent that they can be said to be necessary for the control, protection and maintenance of the street as a highway for public use. Should the meaning of highway so extend and thus the meaning of street for the purposes of the Code, an operator may have an automatic statutory right to, amongst other things, install and keep electronic communications apparatus in, on, under, over, along or across it.

Termination and Removal of Apparatus Installed Pursuant to a Street Works Right

26. A highways authority can require removal using standard Part 6, though only certain grounds would seem to apply. As the rights are conferred automatically, it would appear that there is no agreement under which they “expire”. As such, the statutory grounds on which the highways authorities can rely are under paragraph 37, namely:

(a) the Third Condition (that the apparatus has ceased to be used for a network, that is, has become obsolete);

(b) the Fourth Condition (loss of operator status) and

(c) the Fifth Condition (change in status of the land, with it ceasing to be land qualifying for Street Works status). Although the Fifth Condition requires as one of its components a notice under paragraph 54(9), that is a feature of the Transport Land Regime, and not the Street Works Regime.

27. A third party with a  statutory or other right to seek removal of apparatus on a street must comply with paragraph 42 of the Code:

42(1) This paragraph applies where the third party’s right in relation to which paragraph 41 applies is a right to require the alteration of the apparatus in consequence of the stopping up, closure, change or diversion of a street or road or the extinguishment or alteration of a public right of way.

(2)The removal of the apparatus in pursuance of paragraph 41 constitutes compliance with a requirement to make any other alteration.

(3)A counter-notice under paragraph 41(5) may state (in addition to, or instead of, any of the matters mentioned in paragraph 41(5)(b) that the operator requires the third party to reimburse the operator in respect of any expenses incurred by the operator in or in connection with the making of any alteration in compliance with the requirements of the third party.

(4)An order made under paragraph 41 on an application by the third party in respect of a counter-notice containing a statement under sub-paragraph (3) must, unless the court otherwise thinks fit, require the third party to reimburse the operator in respect of the expenses referred to in the statement.

(5)Paragraph 44(3)(b) to (e) do not apply.

(6)In this paragraph—

“road” means a road in Scotland;

“street” means a street in England and Wales or Northern Ireland.

 

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• Oliver Radley-Gardner KC
• Tricia Hemans

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