Technical Notes 2022, Issue 52 - Report on retrospective Regulation 5 notifications for fixed line broadband electronic communications apparatus installations in Lennoxtown and Milton of Campsie

1. The purpose of this Technical Note is to provide an update and additional clarification on the installation of fixed line broadband electronic communications apparatus by Openreach in and around Lennoxtown and Milton of Campsie.  These works have created a significant degree of concern locally, as the works were carried out without any prior notification, despite Openreach stating otherwise.

2. The erection of telecom poles does not require planning permission.  Class 67 of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (as amended) states that:

Class 67 -

1. Development by or on behalf of an electronic communications code operator for the purpose of the operator's electronic communications network in, on, over or under land controlled by the operator or in accordance with the electronic communications code, consisting of

1. the construction, installation, alteration or replacement of any apparatus;

3. Restrictions to this allowance apply where the development is proposed within a national scenic area, National Park, conservation area, historic garden or designed landscape, site of special scientific interest, historic battlefield, European Site or World Heritage Site, or within the setting of a category A listed building or a scheduled monument.  As none of these designations apply to the poles in question, it can be concluded that they benefit from Permitted Development, and as such are not unauthorised under the controls of the Planning system.

4. However, aside from planning procedures, there is a separate procedure that should be followed with regard to the installation of such apparatus.  This is covered in Regulation 5 of the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 (as amended in 2017).  Regulation 5 states the following:

Installation of electronic communications apparatus

Regulation 5.—

(1) A code operator must give one calendar month’s notice, in writing, to the planning authority for the area in question where—

(a) he has not previously installed electronic communications apparatus in the area and is intending to install electronic communications apparatus, other than lines, in that area; or

(b) he intends to install a cabinet, box, pillar, pedestal or similar apparatus for the installation of which he is not required to obtain planning permission under the Town and Country Planning Act 1990.

(2) The notice to be given under paragraph (1) must state the code operator’s intention to install electronic communications apparatus and must describe that apparatus and identify the location where it is proposed to install it.

(3) Where a code operator has given notice under paragraph (1), the planning authority may, within one calendar month of the receipt of that notice, give the code operator written notice of conditions with which the planning authority wishes him to comply in respect of the installation of the apparatus, but he is not obliged to comply with those conditions to the extent that they are unreasonable in all the circumstances.

(4) A code operator is exempt from paragraph (1) if—

(a) the electronic communications apparatus he intends to install is to be installed inside a building or other permanent structure;

(b) the apparatus is to be installed for the purpose of providing a temporary electronic communications network under regulation 15; or

(c) the apparatus he intends to install is to be attached to or supported by poles or pylons which are used for the transport of electricity at a nominal voltage of at least 6000 volts.

(5) Where a code operator installs electronic communications apparatus underground in a maintainable highway or a street or, in Scotland, a public road or a road he shall place that apparatus in the verge or footway rather than the carriageway unless it is not reasonably practicable to do so.

5. Openreach issued a list of contact details to all Local Authorities in early 2022, to confirm that all the information they held was correct.  It was noted that they had incorrect contact details for East Dunbartonshire Council, and had been sending the regulation 5 notifications to an incorrect address for some time.  A batch of retrospective notifications were therefore issued on the 22^nd February 2022.

6. This therefore explains why Openreach were of the understanding that the required regulation 5 notifications had been sent to East Dunbartonshire Council, but equally the Planning Service had not received them.  This very unfortunate situation was compounded by the sensitive nature of the environment in which the poles were being erected being within the Glazert Water valley Local Landscape Area.

7. It is understood that all of the poles to which the retrospective regulation 5 notifications relate have been installed, although a complete site visit has not yet been carried out to verify this.

8. Section (2) of regulation 5 states that the notification must identify the location where apparatus is proposed to be installed, as well as details of the proposed apparatus.  The minimal information provided with the notifications has made a full assessment quite difficult and time consuming.

9. Members will note in section (3) of regulation 5, that while the planning authority may provide written notice of conditions with which they wish the operator to comply with, the operator is not obliged to do so.

10. Retrospective regulation 5 notifications were submitted on the 22^nd February 2022 for 112 new poles.  The documentation suggests these were sent to the wrong address between January 2021 and October 2021.  The Planning Service considers that, given the location of Milton of Campsie and Lennoxtown within the Glazert Water valley Local Landscape Area, it would be appropriate for the majority of the poles to be rejected in favour of providing underground apparatus.  The response to Openreach therefore includes a condition that 109 of the poles should be replaced by underground apparatus. 

It is noted that there are very little above ground telecom apparatus in the two towns, and that the introduction of a large number of new 8m and 9m poles will introduce a substantial change to the landscape.  There are three poles, to the west of Lennoxtown (listed below), which will serve a rural property where there are existing poles.  It is not considered that these three poles would have a negative impact on the landscape.

1. WP1: NEAR CAPIESTON HOUSE LENNOXTOWN GLASGOW G66 7JY GR: 262036 678685
2. WP2: NEAR CAPIESTON HOUSE LENNOXTOWN GLASGOW G66 7JY GR: 262019 678661
3. WP3: NEAR CAPIESTON HOUSE LENNOXTOWN GLASGOW G66 7JY GR: 261965 678605

11. These recommendations have been sent back to Openreach on 15^th March 2022, within one month of receipt of the regulation 5 notifications.

12. It is very unfortunate that the works have already taken place, but it is again noted that Openreach would not have been obliged to accept the recommendation to install the required apparatus underground, and could have proceeded with the installation of the proposed poles.  The poles do not require planning permission, as they are permitted development under Class 67 of the Town and Country Planning (General Permitted Development) Order 1992 (as amended).

13. Openreach have confirmed that they now hold the correct contact information for East Dunbartonshire Council, and indeed new regulation 5 notifications have been received in recent weeks for other sites, and processed in the normal way.  It is therefore envisaged that a repeat of this unfortunate sequence of events will not be repeated.