Cabletel Surrey and Hampshire Limited v Brookwood Cemetery Limited

Terms imposed under the telecommunications wayleave code must be those which would have been fair and reasonable if consent had been given willingly. The exercise is not a valuation of market terms, although market evidence and comparable transactions may assist. Comparables must be assessed in context, including the nature, location, extent and use of the land and apparatus, the importance of the right to the grantee, and the parties’ bargaining positions. Pragmatic payments made to avoid litigation or for unrelated commercial reasons may require adjustment. A landowner is not entitled to ransom value, a share of the grantee’s anticipated profits, or additional value based on the precedent that the decision might create. A capitalised, once-and-for-all payment may be ordered where appropriate.

Brookwood Cemetery Limited owned private roads serving 82 houses. Cabletel Surrey and Hampshire Limited wished to install and maintain telecommunications cables beneath the roads. The affected frontagers consented, but Brookwood withheld consent.

The proceedings were brought under Schedule 2 to the Telecommunications Act 1984 to dispense with Brookwood’s agreement and fix the terms. His Honour Judge Hull QC ordered a capitalised payment of £667.80. Brookwood appealed, contending that industrial wayleave rates and other comparables required a higher payment. The central issue was the proper approach to fixing consideration under paragraph 7(1)(a).

1. Appeal dismissed. The order requiring a once-and-for-all payment of £667.80 was upheld, with costs on the standard basis.
2. Paragraph 7(1)(a) required the court to determine what terms would have been fair and reasonable if consent had been given willingly. The exercise was distinct from compensation for loss or damage under paragraph 7(1)(b), and was not an exercise in ascertaining market value. Market terms and values remained relevant evidence.
3. The approach in Mercury Communications Ltd v London and Indian Dock Investments Ltd (1993) 69 P&CR 135 was adopted as common ground. Comparable transactions could assist, but adjustments were required where payments reflected pragmatic considerations such as avoiding litigation, time constraints, uncertainty, or the small scale of the works.
4. Relevant considerations included the importance and value of the proposed right to the grantee, the parties’ relative bargaining positions, the use and importance of the particular wayleave, and the nature, location, size and use of the land and apparatus. The grantor was not entitled to a ransom value, a share of anticipated profits, or an uplift based on any precedential value of the decision.
5. The judge was entitled to reject across-the-board industrial rates derived from agricultural negotiations. Those rates did not adequately reflect the difference between core network cabling serving very large numbers of customers and a limited local facility serving 82 houses. The judge was also entitled to prefer the more relevant Guildown Road comparable and Mr Sadler’s evidence.
6. The absence of loss or damage could be identified as a background fact, although any such loss would fall under paragraph 7(1)(b). The evidence supported the conclusion that the present scheme was of marginal viability, but detailed profitability was not the governing measure.
7. The appellants had no right to dictate annualised payments. The judge was entitled to order a capitalised payment, which was supported by the evidence and practical considerations.

• Court of Appeal (Civil Division): Appeal from Epsom County Court dismissed, with costs on the standard basis.
• Epsom County Court: His Honour Judge Hull QC fixed the terms of the wayleave and ordered a capitalised payment of £667.80.