Court Sides with Wychavon Council in Judicial Review of Broadband Poles
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.
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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.
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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).
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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.
Mark is a professional technology writer, IT consultant and computer engineer from Dorset (England), he also founded ISPreview in 1999 and enjoys analysing the latest telecoms and broadband developments. Find me on X (Twitter), Mastodon, Facebook, BlueSky, Threads.net and Linkedin.
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The NIMBYs have no legal basis for their objections? I’m shocked!
“No! It’s not a new summer house, they are just telecom poles that are very close together. Which is of course PD. Yes, it may me a little unusual to have a door inbetween the poles, but that’s to make access to my broadband cable easier.
I would call it a roof, it’s an equipment protection environment deflector, all necessary to keep the cable dry in the UK’s bad weather.”
“Thank you Ehn Tytler, MP for Somehereniceishire, now back to the studio”
Why even deploy it, if a community objected to my build, I would be bye bye enjoy your copper.
They already have Gigaclear underground, so copper isn’t their only choice.
Because as always with these things it’s not ‘the community’ it’s a tiny number of self-important NIMBYs with too much time on their hands who don’t want any development in their area. FullFibre will sell plenty of connections from those poles.
Perhaps they should deploy it properly instead of cheaply. The poles look a mess and surely cables are more likely to be damaged. If they want to deploy do like cityfibre and put it underground.
I agree
@Dialup, Where I live the majority of the city have poles, I grew up with poles in my street, never given them any thought really. I went for a walk on Thursday and noticed one of the cables, going from pole to another is held up in the middle by a lamp post, which is strange, but it is a very long stretch. I must admit that now and again when the wind has been blowing hard here, I have seen the cables from the pole outside my next door neighbour’s house and wonder if they will get damaged, some are pretty long. I have been in this house for 24 years and no problem in that side of things. I don’t know if it will damage fibre, it is easier to damage, but it is protected.
If I look out of my window now as I am in an upstairs front room, I see 8 cables, but it don’t bother me.
If people want cheaper broadband, then they have to put up with poles, I am pretty sure these same people would complain if their roads was dug up.
There was already FFTP gigabit capable underground infrastructure in this area . This build was overbuild , the company not wishing to share infrastructure. Most people against these telecommunications providers infrastructure builds are not against the necessary builds to allow digital inclusion , to allow choice of affordable broadband by ISPs to provide reliable fast broadband to those not served . I and others are genuinely against the overbuild of unnecessary infrastructure in our communities which serves little purpose
In reply to Joyce…. there is a little more to the truth.. Gigaclear came after – when residents pleaded to bring the build forward, in fact, almost to the point, when both crews were in the area at the same time and FullFibre did want to share, Gigaclear… not so much.. lets be honest..
I can view both sides of the fence. In my street one side , Cityfibre has dug underground. Looks good nice and neat.
On my side they dug underground the lenth of the street to feed fibre to the poles !!! Every pole now has a mass of wires to the houses for both city fibre and openreach,while virgin cables cover the same houses underground.
Just for good measure what looks like earthing cables have been installed, florescent pink.
Functional Earthing cables used to be off-white/cream in colour.
Recently, the IET, decided to make them bright-pink, to make them more visible, in places like data centre racks.
Just what you want running down the side of a telegraph pole … not!
I’ve still got mote than 200 metres left, on my very expensive 250m drum of 6mmsq cream functional earth cable, which is now unuseable! Grrr!
In Suffolk we have City Fibre installing Fibre. In just one road in the village I live they have installed 4 cabinets – that installation of street furniture in replicated all over the county. BT/OR have in the newer parts of the village have put everything underground with lots of spare space in the ducts.
Different companies – different practises; apparently they don’t worry about the locals just so long as they can the government money for rushing in ‘competition’.
> so long as they can the government money for rushing in ‘competition’.
There’s no government funding for areas which already have full fibre, or have it planned. It sounds like there wasn’t any government funding available for your area.
>There’s no government funding for areas which already have full fibre, or have it planned
Lol you’re implying the government is remotely competent. There are many areas which already have full fibre yet there’s government funding
To plug gaps, John. Premises with full fibre or Virgin Media are not eligible for public subsidy. They may get an overbuild as part of a commercial build branching off from the publicly subsidised network but that’s all.
Not a question of competence just simple data. An operator covers 30 premises of which 8 were eligible for subsidy they get the 8 crossed off their required premises, the 22 they built themselves.
I’m 78 years old and live in a rural area. Telephone poles were always part of my childhood and still are. To me they are as much part of the rural landscape as the surrounding fields. I don’t have full fibre yet and I don’t think it will happen any time soon but I will happily have the fibre strung from the poles in my lane should the opportunity arise.
Is it the case that the Cables for the Poles
are underground anyway and that the Operators
are just lazy and not extending the Cables
from their Network to people’s houses/businesses
and not installing Cabinets if needed
How are the Networks being built?
I looked at a few Poles in my area
and they are Cables running from the Pavement
and up to the top of the Poles
Yes, the are Wooden and Thick
They are BT Openreach Poles,
if that makes a difference
Is anyone aware of any areas where Openreach have existing DiG (Direct in Ground) copper “drop” cables and are putting in poles for FTTP? If there aren’t any and they’re trenching such areas, maybe the “too expensive” argument from some providers is overplayed?
Near to me there are 2 estates that are direct dig and so far Openreach have simply left them while doing the rest of the town. They are 1970s council estates and due to the layout I think even poles are going to be problematic.
MikeP – I know of lots of examples where DiG copper cables are being replaced with fibre over poles. Granted, these are all in rural areas (rural Aberdeenshire), but there is a definite higher cost for trenching and ducting over new poles, so Openreach are doing this where they can. Some residents do get up-in-arms about new poles up to their property, but the vast majority are just grateful of getting broadband that gives more than 2Mbps!
It seems to me that people who live in areas with no existing poles are generally against having polls installed.
People who live in areas with existing poles can’t see what the problem is, as they are so used to the their existence themselves.
I used to live in an area with poles, but for the past 20 years I have lived in an area with none. I must admit that now I am used to seeing the surroundings and sky without them, it IS far nicer and I’d prefer to keep it that way.
I also feel that having multiple fiber networks deploying cable in the same area is also not particularly environmentally friendly and is a duplication of cost and effort which will ultimately, long-term, lead to higher prices for all.
The regulator has been able to successfully promote competition with only a single “last mile” connection to people’s houses over many years.
In my area we currently have one fiber network and there are plans for another three to be deployed in the next 12 to 24 months, which ultimately seems pointless, especially if some opt to use poles rather than existing underground ducts.