Bridgewater Canal Company Ltd v Geo Networks Ltd

Under the electronic communications code, an operator’s right to cross a canal, railway or tramway includes the right to install and retain the apparatus resulting from the works. Consideration payable for the right to carry out the works must therefore reflect everything acquired by the operator, including the right to keep the apparatus in place. The amount must be fair and reasonable and must exclude a ransom value.

An arbitrator determining an objection to works may uphold the objection entirely where access to the network would reasonably be denied. Compensation for loss or damage may include future loss caused by the continuing presence of the apparatus.

The claimant, the long-leasehold owner of a canal, appealed from an arbitration award concerning the defendant’s proposed installation of an additional fibre-optic cable through an existing duct beneath the canal.

The arbitrator held that the defendant had a statutory right to install the cable, that the arbitration concerned only the practical manner of carrying out the works, and that payment was due only for the works themselves, not for retaining the cable after installation. The central issues were the arbitrator’s jurisdiction under paragraphs 12 and 13 of the electronic communications code and the scope of the consideration payable under paragraph 13(2)(e)(ii).

1. Appeal allowed. The arbitrator had erred in concluding that he could not uphold an objection to the works in principle. Paragraph 12(6) refers an objection to the works, and paragraph 13(2) requires the arbitrator to consider all the circumstances and the principle that no person should unreasonably be denied access to a network. That formulation necessarily permits access to be denied where doing so is reasonable.

2. The arbitrator’s jurisdiction is not confined to technical engineering questions or to the manner of installation. It may extend to whether the works should be carried out at all. Treating an objection on that basis as a jurisdictional issue would produce an artificial and unsatisfactory result.

3. The consideration under paragraph 13(2)(e)(ii) is the price for the right to carry out the works, assessed on the assumption that the objector had willingly authorised the works on the terms and conditions awarded. That right carries with it the right to retain the installed apparatus on, under or over the relevant land. The consideration must therefore take account of the value of that retained apparatus and the rights associated with it.

4. Compensation under paragraph 13(2)(e)(i) is not confined to loss suffered during the physical installation process. It may include increased future expense caused by the continuing presence of the apparatus. The distinction between compensation and consideration does not justify treating the latter as a payment for installation divorced from its permanent consequences.

5. The price must be fair and reasonable. That excludes a ransom payment, but does not permit the operator to acquire something of value without paying for it. The court’s conclusion was reached without deciding the alternative argument under Article 1 of the First Protocol.

6. The judge was provisionally minded to award the claimant its appeal costs and to grant permission to appeal under section 69(8) of the Arbitration Act 1996, subject to submissions and agreement of the order.

The judgment records that Simon J granted permission for the arbitration appeal. The High Court allowed the appeal from the arbitrator’s award.