LC-2023-000815 - [2024] UKUT 263 (LC)

Although the Lubbards Plan, in common with the 2000 Sandbach Plans, leaves something to be desired, in terms of its identification of the Lubbards Site, it seems to me, again, that it is possible, with the assistance of the photographs and Mr Powell’s evidence and notwithstanding the absence of colouring on the Lubbards Plan, to identify the extent of the Lubbards Site, as the same was identified in the 2002 Agreement.

As I have explained, the photographs show that the enclosed compound lies within land which is also in the ownership of APW. One reaches the compound from the road by passing through a gate and crossing some rough open land to the locked gate to the compound. The distance between the gate on to the road and the gate into the compound looks to be around 10 metres or so. The photographs show what look like the overgrown remains of a track or road in this location, which I assume once provided a better standard of access between the road and the compound.

The Lubbards Plan has the title “SITE PLAN” in the title box at the foot of the page. The Lubbards Plan actually contains two plans on the same page. The first and larger of these plans is labelled “COMPOUND PLAN”. This larger plan (“the Lubbards Compound Plan”) appears to have been intended to show the works to be carried out by Orange on the Lubbards Site, both by way of installation of the Telecommunications Equipment and otherwise. The obligations in the terms and conditions in Schedule 1 to the 2002 Agreement included, at clause 5.1.6, the following obligation to erect a fence around the Telecommunications Equipment:

“following completion of the Works to erect a stock proof fence to fully enclose the Telecommunications Equipment and to maintain such fence in a good and safe state of repair and condition throughout the Term.”

The Lubbards Compound Plan shows what I am referring to as the compound, as an area comprising a square, surrounded by what is described as a 15m by 15m fence, of a height of 1.8m. The specific description of this fence on the Lubbards Compound Plan is “PROPOSED 15m x 15m HIGH DIRICKX FENCE COMPOUND REFER TO Std. Drg. No. GF/STD/F/01 FOR DETAILS”. It seems reasonable to assume that this fence or a replacement of this fence is the metal mesh fence, topped with barbed wire, which encloses the compound and the Lubbards Equipment, and can be seen in the photographs.

The smaller of the two plans on the Lubbards Plan is labelled “SITE PLAN”. There are two particular features of this smaller plan (“the Lubbards Site Plan”) which I note.

First, the Lubbards Site Plan also shows what I am referring to as the compound, as comprising a square. The boundaries of the square are delineated by relatively thick lines. It seems to me a reasonable inference that these lines, in the original of the Lubbards Plan, constituted the red edging referred to in clause A of the 2002 Agreement, and thus delineated the Lubbards Site, for identification purposes. In the absence of a coloured version of the Lubbards Plan, it is not possible to be certain of this.

Second, and going back to clause B(v) in the 2002 Agreement, which I have set out above, one of the rights granted to Orange was a right to obtain access to and from the Lubbards Site “over and along the route shown in blue” on the Lubbards Plan. The Lubbards Site Plan shows, by hatching, an access route running from the gate on the road to the gate of the compound. This hatched route is described on the Lubbards Site Plan as “SITE ACCESS”. The location of that hatched route appears to coincide with the overgrown remains of the track or road, which can be seen on the photographs, running between the gate to the road and the gate to the compound. Again, in the absence of a coloured version of the Lubbards Site Plan it is not possible to be certain of this, but it seems to me a reasonable inference that the route shown in blue on the Lubbards Plan is the hatched route shown on the Lubbards Site Plan.

I draw the following inference from (i) the Lubbards Plan, (ii) the terms of the 2002 Agreement, (iii) the photographs, and (iv) the absence of any evidence that the Lubbards Site has been moved from its original location. The enclosed area of compound which can now be seen in the photographs is the same area as the area identified in the 2002 Agreement and on the Lubbards Plan as “the Site”; that is to say the Lubbards Site.