Not So Useful Utility!
- AuthorKieren Palfrey
“I have purchased some land. Pursuant to a deed granted several years ago, a utilities company has a right to cross my land to maintain its telecoms site. This telecoms site is only accessible over my land.
Unfortunately, the utilities company is not maintaining the road, fences or gates to the site. As these were constructed for access several years before, they are now falling into disrepair. The utilities company is refusing to maintain these, arguing the right of way is not its responsibility!”
Unfortunately disputes with utility companies regarding the maintenance of access ways are all too common.
As the road over your land is private, the local authority will have no duty to maintain the network. For this reason, the cause of action can only be against the utility company.
As a starting point, the first matter to consider is the Deed of Grant; the document which gives the utility company the power to build on and access the land for the purpose of the telecoms site.
This Deed of Grant may specifically set out the responsibility for maintenance as to whether this falls upon you or the utility company. If you do not hold a copy of the Deed of Grant, you should request a copy from the Land Registry.
The Deed of Grant may include clear wording as to the utility company’s obligations. Such wording may include that it is to “maintain the roads, fences and gates to ensure they are kept in proper repair and condition.” In such a case, you may rely on the Deed to enforce the utility company to carry out the requisite maintenance.
Unfortunately, other clauses may be more ambiguous, include caveats as to the utility company’s responsibilities, or exclude maintenance obligations entirely.
It is also worth noting that there is no obligation in common law for the utility company to maintain the access way to the site. While the utility company may decide to maintain the roads, fences and gates it previously laid to exercise its right, there is no common law obligation on the utility company to maintain them.
Not all is lost, however. While there may not be a remedy in common law or under the Deed, there may be a solution under the law of nuisance. Where the nuisance is continuing, the utility company may be obliged to maintain the right of way on the basis that it would constitute a nuisance by failing to do so.
Examples of where this may arise are where a road is so overrun as to no longer be passable for you or your visitors, or broken fencing and gates are likely to cause damage or injury, or otherwise invite trespassers to your land. In such a case, then it is at least arguable that the utility company should maintain its structures.
However, maintenance disputes can be time-consuming and costs can quickly spiral. Unfortunately, even the strongest of cases are never guaranteed and where the costs of pursuing litigation outweigh the cost of remedying the nuisance, you may instead decide to take a commercial view on the dispute.
Maintenance disputes are complex and often require input from specialist property litigation solicitors. For any property issues, contact a member of the team on 03333 208644 or email firstname.lastname@example.org
This question is based on a hypothetical situation.