The Lifford Gardens and The Sands residents association, which represents part of Broadway (village) in Worcestershire (England), has been granted a Judicial Review (JR) in the High Court that may allow them to challenge the local council’s decision to allow deployment of a new gigabit-capable broadband network using wood poles.
Network operators often deploy 9-12 metre high wood poles to help run their overhead cables, which are a very common sight across the UK (millions have been built). Such poles are quick and cost-effective to build, can be deployed into areas where there may be no space or access deal to safely put new underground cables, are less disruptive (avoiding the noise, traffic restrictions and damage to pavements of trenching) and can be built under Permitted Development (PD) rights with only minimal prior notice.
However, not everybody is a fan and a growing number of people in areas where poles are being deployed have often voiced objections, particularly when they’ve been rolled out into an area that hasn’t previously had them before. Residents typically find the new erections ugly, obstructive, and often complain about the lack of effective prior consultation.
The issue recently came to somewhat of a head after the Government stepped in and called on network operators to “limit installation of telegraph poles” (here and here), albeit largely by reiterating the rules that operators already follow.
The Government has also called on Ofcom to provide guidance to local planning authorities on how to raise complaints, as well as asking them for support to tackle the challenge. But the industry regulator has warned that their powers are limited (here).
Broadway’s Sitation
The situation in the village of Broadway follows a similar trend to the one mentioned above, although in this case one of the local residents associations has decided to take a more proactive legal approach to challenging the deployment. Both Gigaclear and FullFibre Ltd are known to be deploying FTTP broadband networks in this area (Openreach also has a little FTTP), with each using a variable mix of overhead (poles) and underground (ducts) infrastructure in different areas.
The case itself largely focuses upon FullFibre’s build. However, rather than specifically going after the network operator (FullFibre is merely referenced as an “interested party“), the residents have instead been trying to secure a Judicial Review (JR) of the Wychavon District Council‘s (WDC) decision to allow such work to take place.
The case, which was heard in the High Court (Administrative / Planning Court), appears to partly reflect the fact that there are usually extra considerations for Areas of Outstanding Natural Beauty (AOBN) like those that exist in Broadway:
Extract from the Cabinet and Pole Siting Code of Practice
In National Parks and Areas of Outstanding Natural beauty, the Code Operator should discuss new pole locations with the relevant National Park Authority or AONB Partnership at an early stage to identify opportunities to minimise any adverse landscape impact.
The case argued that the local authority may have failed to properly interpret or take account of such key considerations, which affect the siting and appearance of the development (i.e. did the council take enough action to ensure the visual impact would indeed be minimised, so far as practicable? – this is needed for the work to be considered Permitted Development).
Some of this also touches on the question of whether an underground deployment would have been viable as an alternative to poles, which is always a tricky one for cost-sensitive network operators to balance. But other parts suggest that the local authority might have been a little too close to FullFibre Ltd.
Extract from the Residents Crowdjustice Page:
“When the cable provider first indicated that they intended to pole in Broadway, the residents, the Parish Council and the AONB Planning Officer all registered their objections to Wychavon D.C. We were all ignored as the council chose to do absolutely nothing to prevent the telegraph poles from being erected.
Residents were extremely concerned that Wychavon District Council had appointed a person who was not in planning to oversee the planning directorship dealing with the proposed installation of poles and broadband in our community, when this individual had a pre-existing relationship with the personnel of the telecoms operator (Full Fibre Ltd).
Following a freedom of information request, emails obtained between the two created a perception of bias in the minds of residents that the person appointed by the Council was in favour of the roll out of poles and overhead infrastructure.”
The good news for the residents association is that they’ve now won the ability to seek a JR, with the judge agreeing that two of the three grounds merited investigation. The third ground was only rejected as it was considered to be a duplicate of the first ground.
The Honourable Justice Eyre also agreed that “the tone of Mr Edward’s [of WDC] emails to the representatives of the Interested Party [Full Fibre Ltd] is suggestive that he regarded the exercise a joint venture in which the Defendant [WDC] and the Interested Party [Full Fibre Ltd] were engaged together in overcoming resistance to the installation of cables.”
David Harrison, Broadway Resident, told ISPreview:
“Living in an Area of Outstanding Natural Beauty (AONB), in which we are not even allowed to erect fences or walls in our front gardens, we were amazed and disappointed when Wychavon D.C. said they could do nothing to prevent Full Fibre Heroes Ltd erecting twenty two 11 metre poles to facilitate new Ultrafast Broadband. They said “their hands were tied” as new legislation gave communication providers Permitted Development Rights and they made no effort to prevent our visual amenity being spoilt. We know they could have issued an Article 4 direction that would have then forced Full Fibre to apply for formal Planning Permission.
In March 2024 the Minister for Media & Data, Julia Lopez M.P. confirmed that even where Permitted Development Rights exist, it doesn’t mean the council have no say in the matter. We cannot understand why Wychavon D.C. made absolutely no effort to protect our village and our visual amenity. We hope that our Judicial Review will clarify the position within AONBs & Conservation Areas that were previously protected by law.”
Just to be clear. A JR is a special type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. Such reviews are designed more to investigate how a decision has been made rather than whether or not the outcome of that decision was the right one, although if successful the council might be forced into making amendments, which could set a precedent elsewhere too.
The residents association is currently in the process of using the Crowdjustice website to help them raise enough funding to support the JR. The JR case itself, assuming it does proceed (funding allowing), is expected to take place sometime later this year, possibly toward the end of autumn or later. So at present the association has only won the right to pursue a JR, which is somewhat of a test case.
The JR itself could just as easily decide that the local authority did everything correctly. However, whatever the outcome, network operators, councillors and residents should at least be able to gain greater legal clarity around the issue and this is something that would be useful for everybody to have.
The risk for locals in that, if they lose, they will be liable for the council’s costs and vice versa. The residents association is currently attempting to raise £2,000, but they will then seek to push this up to around £20,000 in order to properly fund the case.
However, the risk for the roll-out of gigabit-capable broadband is that operators could end up having to jump through extra hoops, which might slow their deployments and increase their costs. Some people would clearly celebrate this. But it could also make some builds just that bit too expensive to proceed, which seems likely to disproportionately disadvantage those in some of the most poorly served areas (i.e. those that are often among the most expensive to tackle).
We did reach out to the WDC for a comment last week and are still awaiting their response, although organisations rarely comment when the query involves an ongoing legal case. For the same reason, FullFibre Ltd declined to comment.