Compensation for Injurious Affection to Neighbouring Land Caused by the Presence of a Telecoms Installation
Code 16 Electronic Communication Code

It should be made clear from the outset that this briefing relates to the injurious affection caused to land from the presence on neighbouring land of a telecoms installation and NOT for the personal adverse health effects suffered as a consequence of the installation, that aspect is dealt with in a separate briefing paper.

The first aspect to be kept in mind is that to the best of our knowledge there has never been any applications under these provisions, there has certainly not been any reported cases. We can though look at other types of cases to see what the potential compensation, is likely to be. We also set out in other briefings the effect on the value of property due to the siting of developments that have a potential adverse health effect, and how to use the Code to remove a telecoms installation under para 17 of the Code. We also set out below the full text of Para 16 of the Code:

Butterworths Law Dictionary states that 'Injurious affection' means:-

• "A physical interference with the public or private property rights of others, by the construction of works on adjoining or nearby land."

Para 16(1) of the Code states:

• "Where a right conferred by or in accordance with any of the preceding provisions of this code is exercised, compensation shall be payable by the operator under section 10 of the Compulsory Purchase Act 1965 (compensation for injurious affection to neighbouring land etc) as if that section had effect in relation to injury caused by the exercise of such a right as it has effect in relation to injury caused by the execution of works on land that has been compulsorily purchased".

From that it is clear that compensation is payable to the special category of people that fall within any of the provisions of paras 1 to 15 of the Code. Most of those provisions do not apply being procedural, the generality of the provisions are that an Operator either by agreement, or by order of the Court is granted the right to install telecommunication equipment on land. Had that been another form of development that required the compulsory purchase of the land the public authority or statutory undertaker would be required to pay compensation to neighbouring land owners. Para 16 is setting out that even where there is an agreement, or otherwise those same rights are gained as if that land was compulsory purchased.

Whilst a large question mark has to be drawn over what is termed neighbouring land, it is up to individual cases to argue even if they are some distance from the site that as a direct result of the installation there is an adverse effect upon their land, and therefore they should be treated as being affected. Unfortunately there is little to be gained from the records of the Lands Tribunal as there have been no reported cases at the date of the briefing.

The effect has to be the same or similar to an action that would otherwise be actionable at Common Law. Thus the drop in value of the property, and whilst noise is also something that could lead to a claim, noise created by the construction cannot, although the affect of the construction it self can. The other point is that a claim cannot be submitted until the development is complete, and the effects known. This means that it would be better first to wait a minimum of 12 months before submitting a claim. We shall go into detail below on the procedures to be followed.

To invoke Section 10 of the Compulsory Purchase Act 1965 you would need to prove that some adverse effect has occurred that would normally allow a claim at Common Law, example a nuisance such as noise, or the depreciation in the value of your property. The first stage is to contact local estate agents/surveyors to see how the value of your property has been affected, and what will be the most likely affect, i.e. the difference in the value of your property before and after the development (telecoms development) took place. To get a better understanding of the potential effect it may be better, although the cost may be higher, if you instructed a specialist such as Hextalls (details below), or other chartered accountants that deal with claims for compensation. Planning Sanity can also act as your agents (although a reasonable donation would be expected to be made, as such work eats heavily into our limited resources), although we would expect a reasonable donation based on the actual compensation gained and the time spent on progressing the claim (this is part of our new funding scheme).

The first aspect is to attempt to negotiate a settlement with the Telecoms Operator, this must be undertaken even if you know it will not come to anything. If you cannot agree a settlement then you can refer the case to the Lands Tribunal. The application to the Lands Tribunal is referred to as a Reference, and is made in a form that can be downloaded from their WEB site - Form R - Notice of Reference form. Within that there are three potential procedures, the Simplified Procedure, which is the equivalent to the Small Claims Track of the County Court, which is meant to be fast and less costly, than the normal process which is heard in court, and is unlikely to mean that the costs of the case are paid by the losing party, at least in the majority of cases. There is also a non-oral procedure under which the Tribunal may deal with the case without an oral hearing by considering written representations sent in by the parties.

An expert witness is a witness who gives a professional opinion. Whilst there is nothing to compel you to call an expert witness in support of your case, you may find that doing so is the only way to establish the value of your claim. The type of expert witness most commonly called is a surveyor or valuer, but for some cases it is found necessary to call architects, civil engineers, etc. Not more than one expert witness can be called by a party unless they have applied for and been granted permission of the Tribunal.

Which ever process you use will normally see both parties represented, in the Simplified Procedure possibly by a lay advocate or by a chartered surveyor, although the claimant could represent themselves, or employ either a solicitor or barrister, but of course the cost will go up, and potentially be greater than the compensation received. In the full procedure, then it would be normal to employ a solicitor or barrister to be the advocate, although an application can be made to have a lay advocate, and of course the claimant again could represent themselves. The Telecoms Operator would in both cases be required to employ a barrister, as they are a limited company. Evidence would normally be by both sides calling an expert as to the effects of the development, and the merits of the claim. This might then be backed up by evidence by none professionals including the Claimant.

In relation to the construction aspects of the installation Lord Hoffman inWildtree Hotels Limited and Others v. London Borough of Harrow said:-

• "A person with an interest in land could bring an action for nuisance from building work either for a direct interference with the land by the work, or for "sensible personal discomfort" resulting from the work which caused non-direct damage to the amenity of the land, provided such personal discomfort was the result of the work having been conducted without reasonable consideration for neighbouring properties. .......... Compensation would, however, be payable for the reduction in the letting value of the land which had arisen from the temporary obstruction of access to the hotel. Damages for injurious affection were payable irrespective of whether the damage was caused by permanent or temporary interference with property."

Thus it is potentially possible to seek compensation not simply due to the long term effects but in the right circumstances to the short term effects.

A useful briefing on Injurious Affection is set out in one of the working papers on land value of the University of Reading. Much of this report The Compulsory Purchase of Farmland: Identifying Severance and Injurious Affection claims Roger Gibbard deals with the severance of farmland, however, it does contain a useful section on injurious affection.

As we set out above Injurious affection claims are similar to damages obtained in a common law claim of nuisance, which would be capable of sustaining a claim but for the fact that the use for which the land has been compulsorily acquired was carried out with statutory authority. Injurious affection claims are uniquely available to owners who do not have any land taken by compulsory purchase, but who are nonetheless disadvantaged by the development. Essentially injurious affection claims are quantified by assessing the depreciation in the value of the land. Compensation may be claimed for damage to the land by both the construction of, and the subsequent use of, the works for which the land is taken. Before a matter can be referred to the Tribunal, there will usually have been a claim for compensation or a notice to treat. Such documents form the basis of the case.

There is no definitive list of the nuisances which might substantiate a loss in land value and hence give rise to a claim for injurious affection. Such items have variously been held by the courts to be smell, noise, interference with drainage, loss of privacy etc. Such items are likely to be permanent in nature, and give rise to a loss in value of neighbouring retained land.

Land owners may also be able to substantiate an injurious affection claim even where no land is taken. These are strictly limited by statute to - section 10 of the Compulsory Purchase Act 1965 and Part I of the Land Compensation Act 1973. Because the Code specifically grants a power under Section 10 of the 1965 Act then of course this applies to telecoms installations. Thus for instance home owners may have a claim for loss in value when their properties are blighted by a telecoms installation nearby.

There is a question mark over whether these procedures can be used by those that it is suggested above could use them, this is because the wording of Code 16 refers to the process referring to those in the proceeding sections. We therefore have to determine who is eligible, that though is not an easy question as there is a conflict of advise from different legal minds. The start for Planning Sanity on this appraisal comes with our original advise to campaign groups that this process does not apply, however, in one of the first Code 17 challenges for the removal of a mast Hensher v 02 Airwave (unreported - copy of judgement can be supplied on request) the operator argued that the Code 17 procedure was not the appropriate course of action for Mr Hensher instead he should seek compensation under Code 16. This prompted a comprehensive review of the two processes and an amended view that Code 16 did apply to those that could be genuinely said to be adversely affected, not because of the wording of the Code but because of the wording of Section 10 of the Compulsory Purchase Act 1965.

The notes to the 1965 Act found in Halsbury Statutes for Code 16 (or as it then was Sch 2 of the Telecommunication Act 1984) (copies of Halsbury Statutes can be obtain in the reference sections of most main libraries and are acceptable reference material to be used within tribunals and courts). But first a look at the strict interpretation of the term 'injurious affection' which is 'compensation for land affected but not taken by a development'.

Halsbury Statutes Notes - Code 2

• "See also para 16 post, for provisions as to entitlement to compensation for injurious affection to neighbouring land as a result of the exercise of a right conferred in accordance with this paragraph....."

Halsbury Statutes Notes - Code 7

• "Sub-para (2): Prejudicial affect ....... on that person's enjoyment of ..... land other than land in relation to which the right is conferred. Sub-para (2) above enables the court to make provision in an order for compensation in relation to any prejudice caused by the installation of apparatus to a landowner's interest in neighbouring land as well as land on which the apparatus is actually installed. Note also para 16 post, which makes a general provision requiring operators to pay compensation for injurious affection to neighbouring land".

Halsbury Statutes Notes - Code 16

• "The compulsory Purchase Act 1965 Section 10 Vol 9 title Compulsory Purchase covers cases where no land was taken from the claimant or the land taken from him was not held with the land injuriously affected, but land was depredated merely as a result of he taking of the other land. The aim of this paragraph, therefore, is to provide for compensation when someone with an interest in neighbouring land suffers loss or damage as a result of the installation of telecommunication apparatus on, under or over any land...."

Code 16 and Code 17 are linked in the context that Code 17 specifically sets out that compensation cannot be paid if an order under Code 17 is made. Code 17 only applies to land where no ownership issue exists, that is those that have no other right can apply to the court to have an installation removed. If Code 16 did not apply to that same class of person it would make a nonsense of including that aspect within Code 17 thus there is a correlation between the same classes of person. Code 7(2) makes a link, even given the specific aspects of Code 2 which does not appear at face value to help a claim relating to neighbouring land, but as noted above Halsbury made that link, it is a natural link, because Code 2 relates to the actual land, that land has a development which for all intents and purposes is a public project, and therefore Code 16 says that any neighbouring land where a right had been exercised under Code 2 to install a telecoms installation is land which may give rise to a claim under Section 10 of the 1965 Act for injurious affection by a development undertaken by a public authority, albeit that in truth the operators are private companies, but they are statutory undertakers and therefore for this purpose public authorities.

In Petursson v Hutchinson 3G Limited [2005] Ltd. [2005] EW - this was an application under Code 17 which was hopelessly lost, but as we have here neighbouring land not connected to the development land where Her Honour Judge Francis Kirkham found that compensation was payable to an objector under Code 16 (para 50 of the judgement):-

• "As Mr Humphreys for the defendant points out, paragraph 16 of the Code enables an objector, in the circumstances set out in that paragraph, to claim compensation in the Lands Tribunal for 'injurious affection'. Accordingly, an objector who moves from premises before his objection comes before the court nevertheless has the right to claim compensation. I accept Mr Humphreys' submission that the provisions of paragraph 16 are consistent with the defendant's case that, when occupation and ownership cease, a claim may be brought only, if at all, in respect of the diminution in value to the interest in land."

Therefore it is a compelling case that neighbouring land owners can seek compensation from operators under Code 16.

The current fee that is payable on the registration of a claim at the Land Registry is £50, although an application for the fee to be rescinded can be made by those on low incomes, or on state benefits. A further fee is payable once the matter progresses to trial, that fee is based on the sum claimed in compensation. Cheques must be made payable to 'H.M. Paymaster General'. Community Legal Service funding (formerly called Legal Aid) is not generally available for cases before the Lands Tribunal. Any solicitor who deals with Community Legal Service funding cases should be able to provide further information. However, OFCOM now have the power to grant those affected by "any restriction or condition subject to which that Code applies" (S119(2)(b) Communication Act 2003) legal advise and assistance, including the full cost of a legal challenge, where the case raises a question of principle, or it is unreasonable due to the complexity of the case for the claimant to fund it himself, or for any other special reason. Potentially this could include claims to the Lands Tribunal under para 16 of the Code.

In certain smaller simpler or straightforward cases, time and costs may be saved by using one of two procedures provided for in the rules. Under the simplified procedure, the case may be immediately appointed for hearing on the basis that:

• Documents will be sent in 28 or 14 days prior to the hearing;
• legal representation will not be required, a chartered surveyor may be allowed to act both as advocate and as expert witness;
• The hearing will be informal with no swearing in of witnesses;
• No costs will normally be awarded.

The Lands Tribunal hears a majority of cases at its premises in London, but also holds hearings at local venues if necessary. If the parties want a hearing to take place locally, the Tribunal will normally arrange suitable courtroom accommodation. It is usually possible to arrange hearings more quickly in London.

When the hearing begins, the appellant, applicant or claimants party usually starts first by setting out their case, then calling evidence and presenting documents ('exhibits'). Each witness gives evidence on oath or affirmation, and is liable to be asked questions by the other party ("cross-examination") or by the Tribunal member. The other party has a similar opportunity to introduce its case and call evidence. Each party then has an opportunity to set out the legal arguments it relies on in support of its case. This is very similar to procedure to both public inquiries and court cases.

The Tribunal almost invariably reserves its decision (i.e. does not give it immediately at the end of the hearing) because of the need to view the land in question, and probably other comparable sites too. The decision is given in writing, with a summary of the relevant evidence and arguments. The decision may be read at a further hearing, but in many cases, the decision will be delivered to the parties in writing. The parties may be invited to make submissions to the Tribunal with regard to costs of the case either at the end of the hearing, or later in writing.

The Tribunal's decision on all matters of fact is final, but if a party is dissatisfied, there is a limited right of appeal to the Court of Appeal on a point or points of law. Permission (leave) to appeal to the Court of Appeal will be required. The Lands Tribunal has no power to grant permission to appeal its own decisions, so permission to appeal must be sought direct from the Court of Appeal. There is a time limit of 28 days from the date of the decision, so if you wish to appeal you should not delay.

So much for the procedure, what about the case, as already stated there are no direct precedents to refer to. In a straight forward case it should be possible to argue that the depreciation in land value as a result of the telecoms installation is such that compensation should equal to a sum of he before and after value of the property. and it is along those lines that you will have the best chance of success, although it may be possible to argue that you suffered ill health as a consequence of the high levels of emissions, that argument would have to relate to the land, and not you as a person. Thus if you contacted leukaemia that of it self would not give rise to a claim, but if as a result of that illness the property could no longer be used safely as a residence then that might. But we stress that we would not want to put that as the primary grounds of a case except in the rarest of instances, as the evidence would need to be very strong, and it is unlikely that such evidence is currently available.

House values are known to drop when a telecoms installation is constructed close by. Equally house values are known to drop when other sensitive developments are close to residential property such as High Powered Cables (National Grid), incinerators, landfill ....... As there are no hard and fast figures for telecoms installations it is these developments that we need to turn to in order to see the potential drop. Although even the Operators conceded that homes drop in value. Depending on the source that is used it seems that a figure between 5% to 30% is stated. Our own view is that a property where a mast can be seen from the property is likely to drop in value by between 20% to 30%, then trailing off with the distance from the installation. Although other factors come into the frame such as the local demand for property, the unique character of the property and so forth. It is clearly not a science, and therefore the calculation of the drop in value is best left to the professionals on a case by case basis.

The next question is are you simply seeking as high a level of compensation as possible, or is it more a case of pay back for the operator, once you have answered that question will most likely determine the route that you want to take. If it is simply a question that you want to move but the properties value has dropped to such a degree that you are sitting on negative equity and therefore cannot afford to sell might mean that your best route is to see if the Operator will come up with a reasonable amount of compensation, that can be done by negotiations without involving the Lands Tribunal. And even if it is needed to make it formal, that might mean only looking at the level of the compensation, rather than the principle of whether you are entitled to it. If that is the case then you could simply use either the written, or simplified procedure, in order to save on potential costs.

With All potential legal challenges if you lose you potentially make yourself liable for high costs if you lose, it is therefore always important to get the best advise going on the chances of success. Not only are there the potential costs of your own legal or professional team, but of the other sides, and if it goes to the Court of Appeal those costs as well. You may be able to gain assistance from your household insurance policy, some people will be covered as it is an effect on the value of the property. As set out above OFCOM also has the power to contribute to legal costs. However, some types of compensation claims under the Code, specifically relating to landowners who have installations on their land are protected by a provision that requires the Operator to pay their legal costs, it may be possible to argue that should also apply to other parts of the Code, but it would require strong argument as to the correlation between the various provisions, Planning Sanity is not convinced that argument could be made, but there would be nothing to lose in putting the argument forward.

There are 4 tests that must be undertaken to ascertain whether compensation should be payable, the most important from the perspective of telecoms is test 4, this means that it is the works that compensation is payable, not the use of the land afterwards, thus the presence of the mast would be capable of gaining compensation, but not the fact that emits health threatening rays, even where those emissions were demonstrated to have caused serious ill health or even death, redress for those aspects would be required to be made in a normal claim for damages in the Courts.

These tests (sometimes referred to as the 'McCarthy Rules') are-

1. Injurious affection must be the consequence of the lawful exercise of statutory powers, otherwise the remedy is action in the civil courts;
2. The injurious affection must arise from that which will give rise to a cause of action if done without the statutory authority for the relevant scheme of works;
3. The damage or injury for which compensation is claimed must be in respect of some loss of value of the land of the claimant;
4. The loss or damage to the claimant's land must arise from the execution of the works and not from the authorised use of the lands compulsorily acquired following completion of the works.

• 
  Para 16 - Electronic Communication Code
  1. Where a right conferred by or in accordance with any of the preceding provisions of this code is exercised, compensation shall be payable by the operator under section 10 of the Compulsory Purchase Act 1965 (compensation for injurious affection to neighbouring land etc) as if that section had effect in relation to injury caused by the exercise of such a right as it has effect in relation to injury caused by the execution of works on land that has been compulsorily purchased.
  2. Sub-paragraph (1) above shall not confer any entitlement to compensation on any person in respect of the exercise of a right conferred in accordance with paragraph 2 or 3 above, if that person conferred the right or is bound by it by virtue of paragraph 2(2)(b) or (d) above, but, save as aforesaid, the entitlement of any person to compensation under this paragraph shall be determined irrespective of his ownership of any interest in the land where the right is exercised.
  3. Compensation shall not be payable on any claim for compensation under this paragraph unless the amount of the compensation exceeds £50.
  4. In the application of this paragraph to Scotland-
     1. for any reference in sub-paragraph (1) to section 10 of the Compulsory Purchase Act 1965 there is substituted a reference to section 6 of the Railway Clauses Consolidation (Scotland) Act 1945.
     2. for the reference in that sub-paragraph to land that has been compulsorily purchased there is substituted a reference to land that has been taken or used for the purpose of a railway;
     3. any question as to a person's entitlement to compensation by virtue of that sub-paragraph, or as to the amount of that compensation, shall, in default of agreement, be determined by the Lands Tribunal for Scotland.
  5. In the application of this paragraph to Northern Ireland-
     1. for any reference in sub-paragraph (1) to section 10 of the Compulsory Purchase Act 1965 there is substituted a reference to Article 18 of the Land Compensation (Northern Ireland) Order 1982;
     2. any question as to a person's entitlement to compensation by virtue of sub-paragraph (1) above, or as to the amount of that compensation, shall, in default of agreement, be determined by the Lands Tribunal for Northern Ireland.

Section 10 of the Compulsory Purchase Act 1965 simply sets out that any dispute as to the level of compensation shall be resolved by the Land Tribunal, we shall deal with the procedures and levels of compensation that might be expected to be obtained later in this briefing.