Business Clinic: Is fibre-optic cable owner playing fair on farm contract?

Whether you have a legal, tax, insurance, management or land issue, Farmers Weekly’s Business Clinic experts can help.

Here, Mark Charter, Partner at Thrings, offers advice on what to do when a fibre optic cable wayleave agreement comes to an end.

Q: For a number of years we had a wayleave agreement for a fibre-optic cable passing across some of our fields, paying us a small annual rent. However, a year or more ago we received formal notification from the company that it was terminating the contract.

We notified our agent, who had negotiated the contract, and he shrugged his shoulders and said it was just one of those things, but we find it very strange that there has been no obvious removal of any equipment.

How do we know they aren’t continuing to “use” our land and simply not pay us for it anymore?

Mark Charter, partner, Thrings

A: You do not state exactly how the fibre-optic cable passes across your field, but mention that the wayleave has been in place for a number of years.

It is not unusual for existing infrastructure for other purposes to have been used subsequently for fibre optic cable (for example, fibre-optic cables can be wrapped around the earth wire on overhead electricity cables).

Identifying the exact purpose for the fibre-optic cable in the first instance may also be helpful in resolving this issue.

See also: Barn conversion – residential or commercial?

Fibre-optic cables have often been a key component in the rollout of reliable broadband. The way in which fibre-optic cable is used in internet connections varies:

• Fibre-to-the-cabinet – where fibre optic cable runs from the exchange to the street cabinet, and then copper line from the cabinet to the property
• Fibre-to-the-premises – where fibre optic cable provides the whole connection (exchange to cabinet to property).

Clauses

If the wayleave agreement in this case was well drawn up, it should have clauses that state how the agreement is to be formally terminated; how the operator should dismantle the apparatus on termination; and that termination of the agreement does not affect the landowner’s (or operator’s) rights in connection with any breach of the agreement.

In the first instance, therefore, you should carefully check the provisions of the wayleave agreement itself. If it contains clauses such as the above, write (or ask a solicitor to do so on your behalf) to the operator requiring it to fulfil its obligations on termination of the wayleave.

If removing the fibre-optic cable would be particularly disruptive or expensive (because, for example, it has used other infrastructure for its routing), you may be satisfied by evidence of its decommissioning.

Regulations

The Communications Act 2003, which came into force on 25 July 2003 (and also contained amending provisions to the Telecommunications Act 1984), provides the basis for the current communications regulatory regime in the UK. Ofcom is the national regulatory authority for communications.

You should ask the operator for evidence of the decommissioning of the fibre-optic cable. In the event of any uncertainty, you could ask that an Ofcom-approved engineer certifies that it has been decommissioned.

However tempting it might be, you should not take the law into your own hands and remove (or attempt to remove) the fibre-optic cable or apparatus that supports it yourself. In the event of an unresolved dispute, the removal of the cable would have to be authorised by a court order.

In February 2016 the UK, together with a number of other EU countries, set out its priorities for the European Commission’s review of the regulatory framework for electronic communications networks. As with so many other sectors, we will have to wait and see how the landscape will change in the post-Brexit era.

As you will appreciate, this is a complex situation, and it is recommended that you seek specialist independent legal advice to assess your case.

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