Virgin Media to take council to Upper Tribunal over broadband rollout and land access

Virgin Media has instigated legal proceedings in order to reach a court-imposed agreement under the updated Electronic Communications Code (ECC) over land access with Durham County Council.

The company is seeking through its Project Lightning programme to roll out ultrafast fibre broadband to up to 16,000 properties in Durham by the end of 2019.

It said it had written to the local authority in May in a final attempt to gain access to land which was not granted. 

Virgin Media claimed the build was “initially smooth with good support from the council”. 

However, the rollout “hit an impasse” at the beginning of 2018 when Durham wanted to charge to access grass verges that run alongside public pathways, it said. The company said access was needed so that it could lay fibre optic cables while minimising any disruption caused to residents.

The use of these verges, which are owned by the council, is the recommended build option of the highways department in Durham, the company said, adding that it was “an integral part of the commercial rationale used by Virgin Media for its expansion in the area”.

Virgin Media claimed that Durham was “seeking the payment of a hefty per-metre levy…. while incumbent, BT, and other utility providers already have their pipes and cables installed in these grass verges”.

The company said the ECC was amended in 2017 to support the growth of digital communication across the UK and to limit the cost of deployment as well as make it easier for broadband companies to access land for the installation of new network. “The key principle behind the ECC is that no-one should be unreasonably denied access to an electronic communications network.”

It added that the ECC envisages parties reaching an agreement for rights of access over land. “However, in the absence of such agreement, there is a provision to allow for such rights to be imposed by the Upper Tribunal (Lands Chamber). Virgin Media will now seek these rights to be imposed by the Tribunal.”

The company said the Upper Tribunal would balance the impact of installation to the landowner against the benefit to the end user of the services being installed – in this case the residents of County Durham.

Tom Mockridge, Chief Executive of Virgin Media said: “We are disappointed to be taking this action against a council with whom we initially had a good working relationship. By demanding money for land access Durham County Council is now putting up a broadband blockade to thousands of homes and businesses across the county. 

“This significant planned investment by Virgin Media will boost the local economy and provide consumers with a real alternative to BT’s Openreach network. With Virgin Media offering speeds 13 times faster than the local average, holding this fibre rollout to ransom over land fees risks leaving areas of Durham in the broadband slow lane. Durham has no basis for imposing any kind of a land levy in these circumstances and its attitude runs counter to that we have faced from more forward-thinking councils.”

Mockridge claimed the issue went wider than the city of Durham. “Haggling over land access when we build in a new area slows down broadband rollout and deters investment. It is also an impediment to Government and Ofcom’s ambition for increased fibre rollout and network competition to BT. It’s time rhetoric was put into action to truly break down the barriers to building broadband.”

Stuart Timmiss, head of planning and assets at Durham County Council, said: “We are extremely disappointed that Virgin Media has decided to take this course of action as we were under the impression we had a good constructive dialogue and that we were awaiting further information that we had requested from them.

“Many meetings have been held over recent months, mostly to deal with the poor performance by Virgin Media in our communities. Earlier this year, we took the unusual step of serving the company with an improvement notice due to a significant number of complaints received from residents on the streets in which they were operating. This included poor reinstatement that is yet to be resolved, drives being blocked over long periods of time as well as damage to property. Virgin has been proactive in resolving these issues having terminated their contracts with contractors on site. However, these issues are not uncommon and we are not the only local authority who has been forced to take such action.

“Having said that, the roll out of superfast broadband across our county is very important to us and we will continue to work with all providers in finding the best way to achieve this. Our work through the Digital Durham programme is rolling out fibre based broadband right across the county ensuring all households have access to superfast broadband. Providers such as Virgin Media only provide broadband services to certain areas within the county which they deem to be commercially viable.”