The Lifford Gardens and the Sands Residents Association, which represents part of Broadway in Worcestershire (England), has lost its Judicial Review case against the local council’s decision to allow the deployment of a new FTTP broadband network using wood poles. The Birmingham High Court ruled that the council had acted lawfully.
ISPreview first covered all this in June 2024 (here and here), which gives the full context. But to recap, the case focused upon FullFibre Limited’s network build in the village. However, rather than specifically going after the network operator itself (FullFibre is merely an “interested party“ in the case), local residents had instead secured a Judicial Review (JR) of the Wychavon District Council‘s (WDC) decision to allow the work to take place.
The deployment of poles often seems to attract a fair few complaints. Suffice to say that a lot of people find them ugly, particularly when deployed in areas that haven’t had them before, which has in some parts of the country triggered strong anti-pole protests. Similarly, the aforementioned case partly reflected the fact that, when deploying new poles for overhead cables (locals find these ugly), there are usually extra considerations for Areas of Outstanding Natural Beauty (AONB) like those that exist in parts of Broadway.
The residents’ association claimed that the council may have failed to properly interpret or take account of such 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 (PD).
Part of this case also touched on 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 (trenching is several times more expensive).
In addition, residents had suggested that the local authority might have been a little too close to the network operator after they “appointed a person who was not in planning to oversee the planning directorship dealing with the proposed installation of poles … when this individual had a pre-existing relationship with the personnel of [Full Fibre Ltd].”
The Three Grounds for the Case
1. When a planning authority deals with Permitted Development (PD) notices under PT 16 GPDO, in order to conclude the proposal falls within the scope of permitted development, should it also be satisfied that the condition attached to “minimise visual amenity as far as practicable” is met.
2. Does consideration of ‘as far as practicable‘ mean consideration of undergrounding the infrastructure and are economic considerations relevant to that decision.
3. Where the Code Regulations require consultation with the LPA [local planning authority], can PD rights be granted despite there being no consultation.
The hope was that, one way or another, the case may bring some additional clarity around the issue in AONB and this is something that would be useful for everybody to have. The risk for locals was that, if they lost, they could be liable for the council’s costs and vice versa. But if they won, the council might have been forced into making amendments, which could have set a wider precedent.
The case, which was funded by over £10k of donations to the association’s Crowdjustice Page, was ultimately heard at the end of October 2024. After considering what was said during that hearing, Deputy Judge Richard Kimblin KC this week ruled in favour of the council by dismissing all three grounds of the claim. See the full outcome of this case here: AC-2023-BHM-000256.
Richard Kimblin KC said:
“It is clear that the available options were the subject of survey, iterative design and with regard to the need to minimise visual impacts … there were substantive enquiries and exchanges of information between FullFibre and the Council. Further, the Defendant in these proceedings is the Council, not FullFibre.
The Council expressed itself to be satisfied with the proposals and the information with which it had been provided. In circumstances where the consultee has been corresponding with the developer and has indicated its assent, that is a very strong indicator that Regulation 3(b) has been satisfied.”
In short, the judge confirmed the council’s stance that it had no power to prevent the installations. The BBC News has also covered this story and carries with it a quote from the Council’s Executive Board Member for Planning, Paul Middlebrough, who said: “We take no pleasure from this ruling as we have sympathy with our residents. Giving [PD] rights to the installation of [telecoms poles] has resulted in communities across the country having a blight imposed on them against their wishes, while councils are left powerless. We urge the government to urgently review the regulations regarding the installation of poles and at the very least amend them.”
The deployment of poles is currently governed by the Revised Cabinet and Pole Siting Code of Practice Nov 2016, which are voluntary but do leave open some limited potential for enforcement action by Ofcom. But the regulator actually has few powers here and can only stop broadband operators from deploying their own infrastructure in “very limited circumstances, like when national security or public safety are at risk“.
However, the new Labour-led government, much like the old Conservative-led one, has recently called on broadband operators to “end the deployment of unnecessary telegraph poles” (here), to “share existing infrastructure when installing broadband cables as the default approach” and pledged to “revise” the existing Code of Practice (as linked above).
The government’s telecoms minister has previously suggested that PD or other rights for poles could be taken away from network operators that don’t play by the rules. But we’d hope this would, if ever enacted, be a targeted and temporary sanction with a high bar for enactment, and not an industry-wide restriction, as the latter would be suicidal for related investment and coverage plans (e.g. the government’s own 2030 target for “nationwide” coverage of gigabit broadband).
However, questions remain over what practical changes the new Code will actually deliver, since any overly burdensome changes risk increasing the costs of deployment for operators and thus potentially reducing their roll-out plans. But we do anticipate that it will most likely result in a need for greater pre-build consultation with communities, as well as some improvements to the complaints process. The new code is expected sometime in early 2025.