The Bridgewater Canal Company Ltd v Geo Networks Ltd
| Jurisdiction | England & Wales |
| Judge | The Chancellor,Lord Justice Leveson,Lord Justice Patten |
| Judgment Date | 30 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1348 |
| Docket Number | Case No: A3/2010/0821 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 November 2010 |
[2010] EWCA Civ 1348
Mr Justice Lewison
Before: The Chancellor of The High Court
Lord Justice Leveson
and
Lord Justice Patten
Case No: A3/2010/0821
HC09C04145
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
Mr N Dowding Qc & Mr N Taggart (Instructed By Lawrence Graham Llp) For The Appellant
Mr J Small Qc And Mr O Radley-Gardner (Instructed By Wake Smith & Tofields) For The Appellant
Hearing date: 16 November 2010
Introduction
The Bridgewater Canal Co Ltd (“BCC”) is the long-leaseholder of the Bridgewater Canal. Geo Networks Ltd (“Geo”) maintains a duct under the canal, for which it pays a rent. That duct has sub-ducts. One of them is empty and Geo wishes to lay a further fibre optic cable in it by propelling the cable through the sub-duct by compressed air. It is common ground that it has no private law right to do so; accordingly Geo must, as it does, rely on the provisions of the Electronic Communications Code (“the Code”) enacted by The Telecommunications Act 1984 and set out in Schedule 2 thereof as amended by the Communications Act 2003. In particular it relies on paragraph 12 relating to “Linear obstacles” and has given to BCC the notice required by paragraph 12(4). BCC duly objected in accordance with paragraph 12(5) with the result that an arbitrator, Mr Ian S.Thornton-Kemsley TD, MRICS, DipFBOM, HDA and ACIArb (“the Arbitrator”), was duly appointed by the President of the Institution of Civil Engineers pursuant to paragraph 13(1).
Paragraph 13(2)(e) confers on the Arbitrator power:
“to award such sum as the arbitrator may determine in respect of one or both of the following matters, that is to say—
(i) compensation to the person who objects to the works in respect of loss or damage sustained by that person in consequence of the carrying out of the works, and
(ii) consideration payable to that person for the right to carry out the works.”
By an interim award made on 7th August 2009 the Arbitrator concluded, for the reasons he explained in the award, that
“the provisions of 13(2)(e) relate solely to the carrying out of the works and not to any granting of rights”.
With the leave of Simon J granted on 29th October 2009 BCC appealed to the High Court. The appeal was heard by Lewison J on 10th March 2010. For the reasons given in his written judgment handed down on 19th March 2010 Lewison J disagreed with the Arbitrator. In paragraph 51 of his judgment he said:
“..what the operator must pay for is the right to carry out the works; which right carries with it the right to keep the works on (or under or over) the relevant land in accordance with whatever terms and conditions the arbitrator awards. The price payable must be fair and reasonable but will take into account everything that the operator acquires by carrying out the works. Because the price is one that is fair and reasonable it will not include a ransom value. Accordingly, I consider that the arbitrator came to an erroneous conclusion.”
Accordingly Lewison J set aside the Arbitrator's award and remitted it for reconsideration in the light of his judgment. Geo now appeals from the order of Lewison J with the permission of the judge. Before considering the reasons given by Lewison J, the submissions for the parties and my conclusions it is necessary to refer to the relevant provisions of the Code.
The Code
The Code contains 29 paragraphs of which the first 13 are relevant to the issue we have to determine. So far as relevant I have set them out in the appendix to this judgment. Before considering the detailed provisions contained in those paragraphs it is necessary to appreciate the general structure. Paragraph 1 contains a number of definitions to be applied except in so far as a context otherwise requires. The detail is not material but it should be noted that expression “emergency works” is defined, but the term “linear obstacle” is not.
Paragraphs 2 to 7 contain detailed provisions in relation to what the judge called “the general regime”. The basic structure of the general regime is to require the operator, such as Geo, to acquire the rights it needs to install and keep electronic communications apparatus on land in the occupation and/or ownership of another by agreement. If agreement cannot be reached then Paragraph 5 provides a mechanism by which the necessary rights are obtained through the giving of a notice specifying the rights required and an order of the County Court if it is satisfied as to the matters set out in paragraph 5(3). The order of the County Court is required by paragraph 7(1) to make provision for the payment of consideration and compensation. The provisions which are particularly relevant are those contained in paragraphs 2(1), 5(2),(3) and (4) and 7(1). The overall effect of the general regime is that all those who have an interest in the relevant land, if bound by the order, are to be entitled to be paid for the right to install and keep the electronic apparatus on their land and to be compensated for any loss or damage sustained in consequence of its installation and maintenance thereon.
Paragraphs 9 to 13 provide for what the judge called special regimes in respect of street works, a power to fly lines, tidal waters and linear obstacles. Each of the special regimes differs from the general regime in a number of different, but important, respects. In the case of street works paragraph 9 confers on the operator, such as Geo, the right to install, keep, inspect and maintain electronic apparatus under, in, across and along a street maintainable by the public and any incidental works. In the case of street works no provision is made for notices, court orders or payment of consideration or compensation.
Paragraph 10 applies in a case where some electronic communications apparatus has been installed and the operator wishes to attach a line to it, overfly neighbouring land and attach the other end to similar apparatus there. In such a case the paragraph itself confers the requisite power on the operator. No provision is made for notices, court orders or the payment of consideration or compensation.
Paragraph 11 deals with tidal waters. It confers on the operator the right to install and keep electronic apparatus on or over tidal waters and land. But where the tidal waters or land are part of the Crown Estate such right is only exercisable with the agreement of the particular emanation of the Crown concerned. Further, in all cases, the operator is required, prior to seeking to exercise the right, to submit plans of the proposed works to the Secretary of State for his approval. No provision is made for any court order in default of agreement. Nor is consideration or compensation payable to any one.
Paragraphs 12, 13 and 14 deal with what are called “linear obstacles”. Not only is that term not defined but it only appears in the headings to these three paragraphs. This omission may be important in other cases because it may provide a limit to the application of the general regime the terms of which are materially different to those of this special regime in a number of important respects. Paragraph 12 confers the relevant right but subjects its exercise to certain conditions. They include the giving of notice by the operator not to the owner of any interest in the land but to the person with control of it. That person may object to the proposed works and/or require compensation. In those events an arbitrator is appointed in accordance with the provisions of Paragraph 13(1) with the powers specified in paragraph 13(2). The compensation and consideration referred to in paragraph 13(2)(e) is assessed in accordance with paragraph 13(6) and paid, not to the owner of any interest in the land but to the person in control of it. Thus the linear obstacle regime differs from the general regime in at least the following respects:
(1) In the former the notice under paragraph 12(4) is given to the person in control of the land, in the latter paragraph 5(1) requires the notice to be given to the person whose agreement is required to bind his or any relevant interest in the land.
(2) The linear obstacle regime provides for the person to whom the notice was given to serve a counter-notice of objection and requirement for payment of compensation under paragraph 12(6) and (8) but the general regime does not.
(3) In the case of the linear obstacle regime differences as to what may be done and what should be paid are referred to arbitration but in the case of the general regime they are determined by the County Court.
The issue on this appeal is whether the matters for which consideration or compensation should be paid are also different.
The starting point for the analysis of that issue is paragraph 12(10) which contains the following definitions:
“(10) In this paragraph “relevant land” means land which is used wholly or mainly either as a railway, canal or tramway or in connection with a railway, canal or tramway on that land, and a reference to the person with control of any such land is a reference to the person carrying on the railway, canal or tramway undertaking in question.”
This definition operates to confine the linear obstacle regime to a railway, canal or tramway and associated land. Further the person to whom a notice must be given and by whom a counter-notice may be given is the person carrying on the undertaking of a railway, canal or tramway whether or not he owns the land on or...
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Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd
...frustrate the way the Code should operate. 138 Both parties referred us to the observation of Sir Andrew Morritt C in The Bridgewater Canal Co Ltd v Geo Networks Ltd [2011] 1 WLR 1487, para 26 when considering the old code that “The general regime concentrated at the outset on the occupier......
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Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd
...(e.g. access, inspection, the carrying out of works, and various rights of entry). As Sir Andrew Morritt C pointed out in Bridgewater Canal Co Ltd v GEO Networks Ltd [2010] EWCA Civ 1348, [2011] 1 WLR 1487 at [26]: “The general regime concentrated at the outset on the occupier no doubt be......