GEO Networks Ltd v The Bridgewater Canal Company Ltd

Under the linear-obstacle regime in the Electronic Communications Code in Schedule 2 to the Telecommunications Act 1984, the statutory right to install and keep communications apparatus across relevant land is conferred by paragraph 12(1) itself. The related rights to execute works and enter the land implement that statutory right.

Accordingly, consideration under paragraph 13(2)(e)(ii) is payable only for the right to carry out the works. It does not include consideration for the continuing right to keep the apparatus installed. Compensation remains payable for loss or damage caused by carrying out the works. This limited payment regime differs materially from the general regime, where agreement or a court order confers the relevant rights and consideration extends to the right to keep apparatus on the land.

Geo Networks Ltd maintained a duct beneath the Bridgewater Canal, of which The Bridgewater Canal Company Ltd was long leaseholder. Geo wished to propel a further fibre-optic cable through an empty sub-duct. It had no private-law right to do so and relied on the linear-obstacle provisions of the Electronic Communications Code.

Following the canal company’s objection, an arbitrator held that consideration under paragraph 13(2)(e) of the Code concerned only the carrying out of works and did not pay for any grant of rights. On an appeal on a point of law, Lewison J set aside that interim award and remitted the matter. He held that the consideration included the value of the right to retain the installed apparatus.

Geo appealed. The central issue was whether consideration for the right to carry out works under paragraph 13(2)(e)(ii) also included the continuing statutory right to keep the apparatus in place.

1. Appeal allowed unanimously. The Chancellor, with whom Leveson and Patten LJJ agreed, held that Lewison J had construed the linear-obstacle regime too broadly.

2. Paragraph 12(1) of the Electronic Communications Code in Schedule 2 to the Telecommunications Act 1984 directly confers on an operator the right, in crossing relevant land, to install and keep the line and associated apparatus. The powers in paragraph 12(1)(a) and (b), to execute works and enter the land, implement that already conferred right. They do not create the substantive right to keep the apparatus installed.

3. Paragraph 13(2)(e) therefore separates two matters. Paragraph 13(2)(e)(i) concerns compensation for loss or damage sustained in consequence of carrying out the works. Paragraph 13(2)(e)(ii) concerns consideration for the right to carry out those works. The court declined to add words extending the latter consideration to the continuing right to keep the installed apparatus on, under or over the land.

4. The statutory setting reinforced that reading. The linear-obstacle regime is confined to crossings of railways, canals and tramways, and the payment is made to the undertaking’s controller rather than to all persons holding interests in the land. It contains no machinery equivalent to the general regime for binding those interests or compensating them for the rights granted. The more extensive consideration payable under paragraph 7(1) of the general regime could not be imported into the distinct special regime.

5. The court’s construction avoided both a windfall to the undertaking’s controller and the anomaly that an operator might have to pay again for the right to keep apparatus whenever it carried out later repairs or alterations. The judge’s order was consequently displaced and Geo’s appeal allowed.

• Court of Appeal (Civil Division) Allowed Geo’s appeal and rejected the construction adopted by Lewison J.
• High Court, Chancery Division Lewison J allowed the canal company’s appeal on a point of law, set aside the arbitrator’s interim award, and remitted the matter for reconsideration.
• Arbitration The arbitrator held that paragraph 13(2)(e) concerned the carrying out of works only and did not extend to the grant of rights.