Wayleave & OpenReach

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Wayleave & OpenReach

Postby SeasonsHerts » Wed Jul 19, 2017 8:46 pm

Hi All,

I hope everyone can read this with an open mind (much of the advice I have received has been very unhelpful when you mention the word OpenReach) I am struggling to move forward with an issue to have a telephone pole removed *please stay with me people* :P

We have an existing pole on our land, which does not provide any service to our home and also has no wayleave in place. Secondary to this, it is precariously leaning so isn't that safe where it stands

We have been through all the necessary checks on wayleave with OpenReach and subsequently issued a code notice to OpenReach for it to be resituated. As entirely expected they came back with a counter notice which they enforce their rights to have it on our land. However my issue is with the the final paragraph of the letter.

"I can see from our records the pole in question was installed in 1952. At the time the pole would have been installed in response to an order for provisions of telephony service. A wayleave is unlikely to have been signed as when the pole was installed it was to provide service for Sundown and/or others. However had the landowners at the time requested wayleave we would have happily entered negotiations but there is no record one was requested. The pole would also have a notice on it originally to allow for objections. to the best of our knowledge no objections have even been received prior to this one"


Most people will jump straight to the statutory rights defence and "They can put a pole where they like" angle, but I would like to think there is at least someway in moving this forward. We would like to enter into negotiations with them to come to some sort of agreement.

In all honesty we are aware that removing the pole from our land is ridiculous and unlikely, which to be truthful we would happily settle with having it repositioned on our land in a more structurally sound spot. (Please note we would ideally want it moved within a 3 meter radius of where it already is situated so the cables running from it would barely be affected.)

Our main gripe is the pole provides no service to us and is on our land without written wayleave. Access to our property has changed over the years which would require them to seek permission from us to gain access should they need to service the pole. If we were to dig our heels in (if the time ever came) and we say no, with no wayleave in place they would need to exercise their rights legally to gain accesses to the pole... Surely having the wayleave in place now would be more beneficial?

We are really looking for sound legal advice on this matter whether we can move forward... I can't believe the law is entirely on their side, else why would the telecommunications act be enforced and wayleave be needed in the first place?

Are we completely wasting our time? Are there any lovely litigation solicitors out there that would want to work with us. We aren't ready to roll over and admit defeat and think pursuing this legally might hopeful get us some results!
SeasonsHerts
 
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Re: Wayleave & OpenReach

Postby mr sheen » Wed Jul 19, 2017 10:24 pm

The paragraph you quote indicates that their position is that the pole has been there since 1952 and the owners at the time did not object or enter into any negotiations re wayleave. Your complaint is the first they have had.

You claim that they will benefit from Wayleave but they will assess whether this is the case, or not. The pole has been there for more than 50 years without wayleave and this is the first complaint. You can keep negotiating but your position is not strong and reasonableness would be the way to go with a clear realistic outcome aimed for.

Are you really seeking a solicitor to work for you pro bono for a wayleave issue for a pole that has been in situ for more than 50 years without issue?

Pursuing a dispute via the legal route relies upon having a case that can be won in court if necessary. A court would expect this to be settled by negotiations dn you say that negotiation is how you want to proceed. The first step is to recognise the strength of the position of your opponent and then set appropriate realistic goals. Then start discussing with them to get the best outcome you can. Making 'legalese' style claims to a company that has a legal team is not going to get far.
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Re: Wayleave & OpenReach

Postby ukmicky » Thu Jul 20, 2017 12:02 am

They don't need a written wayleave now , they would say they have what is called an implied wayleave.

Legally they could go for a prescriptive easement if there is no record of a written wayleave which after 40 years now cant be challenged

You could be lucky however as they often do move them if there is somewhere else it can go and its not to costly to move. To determine if you could be lucky you need to look to see if there is somewhere very near to its current location it could go such as the highway, as they have a legal right to place there equipment on the highway.

However even though they have the right to place a pole on the highway they will ask the council and highways department if they have any objections and if they do object (and there can be many reasons why wouldn't want a new pole placed on the highway) the chances are they will leave it where it is and do what ever they need to do legally to keep it where it currently is.

My daily job involves making these type of decisions.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Wayleave & OpenReach

Postby SeasonsHerts » Thu Jul 20, 2017 7:22 am

mr sheen wrote:The paragraph you quote indicates that their position is that the pole has been there since 1952 and the owners at the time did not object or enter into any negotiations re wayleave. Your complaint is the first they have had.

You claim that they will benefit from Wayleave but they will assess whether this is the case, or not. The pole has been there for more than 50 years without wayleave and this is the first complaint. You can keep negotiating but your position is not strong and reasonableness would be the way to go with a clear realistic outcome aimed for.

Are you really seeking a solicitor to work for you pro bono for a wayleave issue for a pole that has been in situ for more than 50 years without issue?

Pursuing a dispute via the legal route relies upon having a case that can be won in court if necessary. A court would expect this to be settled by negotiations dn you say that negotiation is how you want to proceed. The first step is to recognise the strength of the position of your opponent and then set appropriate realistic goals. Then start discussing with them to get the best outcome you can. Making 'legalese' style claims to a company that has a legal team is not going to get far.


Hi Mr Sheen,

Of Course I'm not expecting anyone to work Pro Bono! I never once stated that. I completely agree with you on everything you said. We would like some legal help to assess whether there is a case and whether we should move forward.

Sadly at present the only option is calling a standard OpenRaeach service center who try to charge you to send a surveyor at a fee, nothing gets negotiated etc. If we are going to pay money, we would rather pay a solicitor which might have a better change of getting something done for us.
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Re: Wayleave & OpenReach

Postby SeasonsHerts » Thu Jul 20, 2017 7:29 am

ukmicky wrote:They don't need a written wayleave now , they would say they have what is called an implied wayleave.

Legally they could go for a prescriptive easement if there is no record of a written wayleave which after 40 years now cant be challenged

You could be lucky however as they often do move them if there is somewhere else it can go and its not to costly to move. To determine if you could be lucky you need to look to see if there is somewhere very near to its current location it could go such as the highway, as they have a legal right to place there equipment on the highway.

However even though they have the right to place a pole on the highway they will ask the council and highways department if they have any objections and if they do object (and there can be many reasons why wouldn't want a new pole placed on the highway) the chances are they will leave it where it is and do what ever they need to do legally to keep it where it currently is.

My daily job involves making these type of decisions.


Thank You UK Micky. i really appreciate this reply! Highway won't be an option just with the locations of the houses that it serves. All options around us are all private land, so realistically moving it more securely on our land is the only real option.

I have read multiple people online who have successfully got them moved. The reason for going down the legal route is for the matter to be taken a bit more seriously. As I'm sure you are aware, we are being fobbed off with calling the service center and being made to pay for a surveyor to come round and land us with a bill. Our thinking that if we start to go down threatening the court order route (via a solicitor) maybe we can actually speak to someone who can get us somewhere and take this a little more seriously?
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Re: Wayleave & OpenReach

Postby MacadamB53 » Thu Jul 20, 2017 8:19 am

Hi SeasonsHerts,

take this a little more seriously?

try towing the line - pay the fee for the survey like you have been asked.

how serious do you think you'll come across sending a sols letter when they hold all the aces?!?

Kind regards, Mac
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Re: Wayleave & OpenReach

Postby mr sheen » Thu Jul 20, 2017 8:25 am

The idea that you can 'threaten' court to a company that has a legal team is absurd. You either have a winnable court case and then pursue it or you accept that you don't and you forget that idea. If you 'threaten' court to anyone who has knowledge of their legal position, they will leave you to it in the full knowledge that you will get nowhere.....at a massive financial cost to you and cost them nothing.

You have no legal case.

You can try to negotiate nicely.

If you want it moved, you will have to pay for a surveyor.
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Re: Wayleave & OpenReach

Postby SeasonsHerts » Thu Jul 20, 2017 8:26 am

MacadamB53 wrote:Hi SeasonsHerts,

take this a little more seriously?

try towing the line - pay the fee for the survey like you have been asked.

how serious do you think you'll come across sending a sols letter when they hold all the aces?!?

Kind regards, Mac


HAHAHA! As expected... The keyboard warriors come out.

I have got a very HELPFUL answer for someone who actually works for them.
SeasonsHerts
 
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Re: Wayleave & OpenReach

Postby SeasonsHerts » Thu Jul 20, 2017 8:29 am

mr sheen wrote:The idea that you can 'threaten' court to a company that has a legal team is absurd. You either have a winnable court case and then pursue it or you accept that you don't and you forget that idea. If you 'threaten' court to anyone who has knowledge of their legal position, they will leave you to it in the full knowledge that you will get nowhere.....at a massive financial cost to you and cost them nothing.

You have no legal case.

You can try to negotiate nicely.

If you want it moved, you will have to pay for a surveyor.


Are you a solicitor advising we have no legal case? Because thats what I am trying to establish here. I am trying to find a way to enter into Negotiations... Not chat with a 18 year old on a call center phone.
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Re: Wayleave & OpenReach

Postby mr sheen » Thu Jul 20, 2017 9:07 am

Mac is a highly respected member of the forum and has given a sound opinion on your position.
The concensus here appears to indicate that from the info given, you are on a loser and your only option is to negotiate. That is my opinion as someone who has been dealing in property and with property legal issues for 30 years. I have a full legal team on hand that I pass issues to but I have picked up masses over the years and enjoy discussing things here and passing on the benefit of my acquired knowledge, understanding and experience. People can take it or leave it.

If you want a detailed assessment of your position you need to go and see a solicitor.

Your options are limited...as my colleague Mac has indicated...they hold all the cards.

You could write a letter to a high-ranking official and see if that gets any action but if you wrote to me threatening legal action and with legalese info, which I can assure you happens a lot, I would ignore you and leave you to it since I know I hold all the cards.

You will have to swallow the bitter pill of being humble and nice to them to see if they will help you or pay the surveyors fee and follow the formal procedure. They will probably force this route anyway.
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Re: Wayleave & OpenReach

Postby MacadamB53 » Thu Jul 20, 2017 9:09 am

SeasonsHerts wrote:
MacadamB53 wrote:Hi SeasonsHerts,

take this a little more seriously?

try towing the line - pay the fee for the survey like you have been asked.

how serious do you think you'll come across sending a sols letter when they hold all the aces?!?

Kind regards, Mac


HAHAHA! As expected... The keyboard warriors come out.

I have got a very HELPFUL answer for someone who actually works for them.
please share this HELPFUL answer - that would be HELPFUL.

for the record - you have no case in common law and you're "adversary" has several statutory powers they can rely on in any case.
given the situation you face, I imagine you've scoured the internet for similar case in the hope of identifying a chink in the armour.

my understanding is that chink is a failure on their part to issue a counter notice within the statutory period - and it seems that chink has come and gone.

you're now facing an impregnable, non-negotiable process so either follow the path of least resistance or else ultimately waste your time.

Kind regards, Mac
PS I have faced this situation first-hand so speak from experience
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Re: Wayleave & OpenReach

Postby Clifford Pope » Thu Jul 20, 2017 4:22 pm

"Secondary to this, it is precariously leaning so isn't that safe where it stands"

If that is true then that is the only basis on which you might obtain some satisfaction by agreement at no cost.

But the two elements in that statement are unconnected.
A leaning pole is not necessarily unsafe, merely unsightly.
"Where it stands" depends on the soil conditions, not its angle. If it were soft, boggy ground, and the pole was showing signs of rot, then yes, it might be unwise to site any pole on that spot.
But you would need some kind of case to persuade Openreach to investigate or agree, and by getting into an argument you have thrown away your changes of getting a friendly visit and a chat.

Your best bet is to cultivate a passing Openreach man when he is working anywhere nearby. If you can persuade him to cast an eye on your pole and perhaps agree it would be better straight, then you have a friend rather than an enemy.

I have always found that men on the spot are much more reasonable that staff on the end of helplines. If you cultivate phone linesmen, electrical engineers, postmen, delivery drivers, meter readers, etc then people working in rural areas are often very willing to help out when they can. A cup of tea helps :)
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Re: Wayleave & OpenReach

Postby ukmicky » Fri Jul 21, 2017 1:32 am

All requests to move equipment are taken seriously and the record of your request will not simply be siting with the person you spoke to on the phone. Next time you call ask to speak to someone in charge

Many decisions where they agree to move equipment are made because the person with the authority to authorize it does so simply because he or she is being nice, not because they are worried it may be taken further if they say no. Moving equipment does however cost money and involves a lot of legal work and planning and sometimes being nice is not enough to justify agreeing to all requests.

You need to understand the person with the authority to move this pole will not be afraid to refuse you request and hand it over to their legal department if you give them cause. Their legal department will handle hundreds of cases every year like this and if they get involved the first question they will ask them selves is not can we move it , it will be, is there a legal reason why we should move it. That is not the route you want them going down unless you have a good legal case so my advice is don't send a solicitors letter.


I have agreed to many request to remove my companies equipment from private land when I can reposition it on the highway local to its current position and the cost involved is reasonable .Doing so also removes the issues you get with private landowners so it has its benefits . You say this pole serves other properties and cant go on the highway so will need to be reposition on your land , which gives the telecoms company the only reason they need to use their statatory powers to keep it where it is, unless you can provide a very good reason why they should do as you ask. Your reasons for wanting it moved however are not good enough to justify the cost of moving it.


Also they do not need to ask permission to come onto your land even if the layout has changed . The pole is on your property and serves other properties so the law gives them a statutory right with or without a written wayleave.
Advice given is not legally qualified and you are advised to gain a professional opinion
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