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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 13590
Experience:  I have been practising for 30 years.
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The other issue I have is a telegraph post 1 foot in front

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The other issue I have is a telegraph post 1 foot in front of a window. I have been quoted £3500 to move it by BTOpenreach. They failed to explain these charges save for about £126 is materials. I want it moved 3 metres. As their charges appear unreasonable and not transparent, and there are no way leaves for the 3 posts on my land, I issued one of their notices from their website to remove all of their equipment 19/12/18, but that I was happy to negotiate. They issued a counter notice saying that they are allowed to have equipment there unless they behave in a “dilatory” manner. I consider that they have. They have refused to discuss the matter - the way leaves team, and I have been unable to get a response from them. I therefore want to go to court and get a judgement against them. Which court and which form, is my question?

Good morning. I will assist with your question - be aware this is an email not chat service therefore maybe delayed in replying.

was the pole put there recently?

if not how long have you lived with this?

Customer: replied 2 months ago.
The 3 poles were here when I arrived/bought the place but there is no wayleave. I moved here August 29th 2018.

I am dealing with the other question for you but I am still waiting for some more information. If you can reply to that thread about the chickens, I can deal with that for you also.

Provided the post has been in place for 20 years or more without consent and without objection and not in secret then BTOR can claim an easement by prescription for it to stay in place.

If you agreed to put it in place before that with no formal way leave, then it only occupies by licence and you can ask them to remove it and they are not entitled to charge. Indeed, if that was the case you could ask them to remove it and get rid of it altogether.

If you think they are overcharging (I don’t know what work is involved) then make a complaint to the regulator. I would suggest that you tell them that unless they agree to make their charges more reasonable you will refer the matter to the regulator for the regulator to determine whether these charges are reasonable or not.

If you want to go to court to have the cost of moving the post determined by a County Court judge, it’s potentially going to be financially risky because the judge may just decide the cost is reasonable. Therefore, you are going to have to come up with a quotation from an independent party or some other expert witness evidence as to what the true cost should be.

If you want to go to court, the appropriate court form is N208 and you need a supporting witness statement in this format:

https://www.justice.gov.uk/courts/procedure-rules/civil/standard-directions/general/witness-statements

The court fees GBP255 and there are further fees for Directions Questionnaire and an eventual hearing if there is one.

There is no legal aid for this and if the judge thinks that you have “lost” your case because he determines the fee to be reasonable, you could end up spending thousands of pounds in legal costs payable to BTOR. Remember they have unlimited funds to litigate.

Can I clarify anything else for you?

I am happy to answer any specific points arising from this.

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Thank you.

If you still need any points clarifying, I will still reply because the thread does not close.

Best wishes.

FES

Customer: replied 2 months ago.
Ok - as far as my searches from the purchase last year there are no easements or wayleaves. Don't know if this helps.
You are suggesting that court is risky, which leaves challenging the costs with the regulator. Which regulator? OFCOM are not interested, so who would I take this to?
Thanks, ***** ***** rating advice noted - do I do it now or at the end?

Thank you. I’m glad to help.

You say that OFCOM are not interested but you haven’t mentioned that before.

I appreciate the result of the searches didn’t show any way leaves but the situation remains that if the post has been in place for 20 years or more without consent or objection and not in secret, then they have an easement by prescription for it to remain.

Court is only risky because there is no guaranteed outcome. The issue here of course is just whether the cost is reasonable or not.

You have already been to Ofcom and they are not helpful, you can always make a formal complaint about their actions or lack of: https://www.ofcom.org.uk/about-ofcom/contact-us/complaints-about-ofcom

You can rate the service as soon as possible. The thread stays open and we can continue our exchanges.

F E Smith and 2 other Law Specialists are ready to help you
Customer: replied 2 months ago.
OFCOM tell me they only 'police' the telecommunications companies. Openreach is network/infrastructure.....So is there another regulator?
Which body regulates consumer charges being 'reasonable and transparent'? I presume trading standards, or is this something for the competition commission, because Openreach has a monopoly? Or both?

The only other information I can find is to contact the Wayleaves Dept, Pole Objections. I think that you probably have been there already.

Otherwise, the general consensus is that there is no regulation.

You could always tell them that you think their fears unreasonable, and pay it to get the job done and then take them to court for what you think you should be refunded, on the basis that the paid under pressure/duress/mistake.

The court would then decide whether the fee was reasonable or not.

It would be essential for you to say at outset that you were paying under duress.