Jones & Ors v T Mobile (UK) Ltd

The three-month period for objecting to overhead telecommunications apparatus under paragraph 17(2) of Schedule 2 to the Telecommunications Act 1984 begins when its physical installation is completed. It does not depend upon the apparatus becoming operational or upon the operator affixing the notice required by paragraph 18.

A paragraph 18 notice is reasonably legible if its position, size and lack of obstruction permit it to be read with reasonable comfort. It need not be readable from land to which the public has a right of access. Paragraph 18 has its own criminal sanction, but non-compliance does not postpone the paragraph 17 objection period.

A telecommunications operator erected a 30-metre tower near the claimants’ properties. Physical installation was completed on 15 July 2001. A statutory notice was attached to the surrounding fence the following day, but it could not be read without crossing privately controlled land. The claimants served notice of objection more than six months after physical completion.

Judge Morgan decided a preliminary issue in the claimants’ favour. Although installation meant physical installation rather than operational readiness, he held that the three-month objection period did not begin until a reasonably legible notice had been affixed under paragraph 18 of Schedule 2 to the Telecommunications Act 1984. He found the notice insufficiently accessible.

After procedural irregularities concerning permission, time limits and the proper appeal court, the Court of Appeal extended time and granted permission conditionally. The central merits issues were whether paragraph 18 compliance controlled the commencement of the paragraph 17 period, whether the notice was reasonably legible, and whether installation required operational connection.

1. Appeal allowed unanimously. Kennedy LJ gave the leading judgment. Brooke LJ agreed on the merits and addressed the appellate and conditional-order issues. Holman J agreed with both the result and the principal statutory reasoning. The notice of objection was outside the three-month period, and the relevant preliminary issue was answered in the negative.

2. Paragraph 17(2) of Schedule 2 to the Telecommunications Act 1984 starts time upon completion of the installation. Nothing in paragraph 17 makes commencement depend upon the paragraph 18 notice. An objection served after physical completion but before the operator’s three-day period for affixing that notice expired would plainly be valid. It followed that failure to comply with paragraph 18 could not stop or postpone time under paragraph 17.

3. Kennedy LJ held that paragraph 18 assists potential objectors by identifying the operator and the address for objections. Its separate criminal sanction supports treating it independently from the objection period. A notice is reasonably legible when its height, size and position on the apparatus allow it to be read with reasonable comfort, without obstruction or a need to climb upon the apparatus. It need not be readable from land to which the public has a right of access. On the undisputed facts, the operator had complied with paragraph 18.

4. Holman J added that paragraph 18 could not sensibly trigger the objection period because it permits affixing at any time within a three-day interval and does not require the notice to state either its own date or the installation date. Its requirements must also be construed strictly because contravention is a criminal offence.

5. Installation meant physical installation, not connection to the network or operational readiness. Section 4(5) distinguishes apparatus being installed from being connected for use. The tower was itself apparatus, so the objection period began when its physical installation was completed.

6. Brooke LJ held that a final determination of a separately tried issue in a multi-track county court claim falls within the statutory destination-of-appeals regime and is appealable to the Court of Appeal. He also explained that CPR 3.1(2)(a) permits proportionate and just conditional orders. The late appeal was therefore allowed to proceed on condition that the successful appellant could not recover its appeal costs. It was awarded its costs below and the remaining costs of the action, subject to detailed assessment.

1. Court of Appeal (Civil Division): Extended time, granted permission to appeal subject to a costs condition, and allowed the appeal. The preliminary issue whether the objection was served within three months was answered in the negative.
2. County Court: Judge Morgan resolved the preliminary issue in the claimants’ favour on 10 January 2003. He held that physical installation was complete but that the objection period had not begun because no reasonably legible paragraph 18 notice had been affixed.
3. High Court: Aikens J purported to grant permission and refer the matter under CPR 52.14. He lacked jurisdiction because the Court of Appeal had sole appellate jurisdiction.