100 Years Obligation to Tolerate Telecommunications Cables

31 March 2004

Arine van der Steur

100 years ago, the Dutch Telecommunications Act came into effect. The Act provided the obligation to tolerate cables of the Dutch (governmental) Telecom Operator: the “PTT” (nowadays “KPN Telecom”) on one’s property.

In short, this obligation implies that if it is necessary to install cables in a certain piece of ground, the owner of this piece of ground must tolerate the installation and maintenance of these cables.

In 1998 the Dutch Telecommunications Act was changed in such a way that this obligation to tolerate cables came into force for all telecom operators. This resulted in the large-scale installation of various telecom cables.

It goes without saying that this has posed numerous problems which have had to be solved by an independent third party.

Annexed is an overview of case law regarding the laying of telecom cables and the obligation to tolerate this over the last 100 years.

The drafting of such an overview was not easy because different authorities are now authorised to give judgment. Before 1998, only the normal courts were authorised. Since 1998 OPTA has been given the authority to make judgments on installations in private ground or judgments on the costs for relocation of cables. The cantonal section of the District Court (“kantonrechter”) is authorised to render a judgment on the claim for damages.

There are, therefore, many different sources for case law on this point. Furthermore it is a problem that hardly any case law from the cantonal section of the District Court is published in public registers. Therefore this overview will probably not be comprehensive.

Nevertheless, this overview is still very valuable. Firstly, because it is the first Dutch overview which comprises all case law relating to cable. It can be shown that the first 95 years were relatively quiet and that most case law has been established in the last 5 years. Secondly this overview enables one to deduce the main problems with regard to the laying of telecom cables. This can be very important with regard to the fact that the specific chapter of the Telecommunications Act (Chapter 5) that deals with digging rights and the obligation to tolerate cables will be changed in the near future.

Within the next couple of months a legislative proposal will be submitted to the government. It is already known that the obligation to tolerate cables will be maintained, but that it will be stressed that telecom operators must be more aware that the owners of ground owners and utility companies also have interests.

The key questions with regard to laying cables and the obligations to tolerate are:


  1. Under which circumstances is it necessary to relocate cables and who has to bear the costs of relocation?

  2. Does the obligation to tolerate cables also extend to empty ducts?

  3. Which “judge” is authorised to render a judgment?

  4. Are municipalities entitled to levy taxes for cables located on their grounds?

  5. To what extent, when laying a cable, is there an the obligation to investigate whether there are existing cables in the ground a company wishes to dig in?

In order to complement this overview, all comments are welcome and can be sent to arine.van.der.steur@twobirds.com. Interested persons can also subscribe to the (Dutch) Cable Newsletter with regard to Dutch cable case law at this email address.

Overview of case law over the first 100 years of the Dutch Telecommunications Act

Section 5.1 obligation to tolerate cables

Subsection 1: obligation to tolerate cables in public grounds

1. Supreme Court, 20 October 1937, NJ 1937, 1147: Municipalities do not have the authority to levy tax on encroachments on public land (“precariobelasting”) as there is a generally applicable legal obligation to tolerate telecom cables.

2. Supreme Court, 11 December 1996, BNB 1997, 58, KPN/Hoogheemraadschap van de Aalblasserwaard en Vijfheerenlanden: As the water board also has the obligation to tolerate telecom cables, they are not entitled to levy taxes. Municipal charges are not taxes and can therefore be charged legally.

3. Appeal Court, 12 January 2001, LJN-nummer AA9590: A specific stipulation in an agreement that reimbursement costs may not be charged, impedes the levying of any charges.

4. Administration Law Division of the State Council, The Hague, 4 February 2004, LJN-number AO2837: As a result of the legal obligation to tolerate telecom cables, it is not possible to impose an obligation to have a licence pursuant to the municipal bye-law with regard to roads.

Repavement

5. Single Judge Charged with Urgent Cases, Rotterdam, 25 June 2002, KG 2002/186: The attachments with regard to payment of repavement invoices are justified.

6. OPTA: Letter of 7 March 2003 of OPTA to KPN/Gemeente, Haarlem: In principle the party entitled to install telecom cables must pay for repavement costs.

7. Single Judge Charged with Urgent Cases, Haarlem, 7 November 2003, LJN-number AN8319: The tariff in Haarlem is in accordance with the Dutch Telecommunications Act in that the owners of the grounds are not entitled to more than the single remuneration of the costs of the tolerance obligation.

Subsection 2: Obligation to Tolerate Cables with Regard to Other Grounds

8. OPTA: Van Pallandt van Keppel Stichting v. KPN Telecom, 9 May 2001: In spite of the public destination of the garden as a public park, part of this garden can be defined as private property, an ‘erf’. Cables in this private property do not fall under the obligation to tolerate cables.

Section 5.2 Municipal co-ordination

9. The district court of Rotterdam, 25 January 2000, LJN-no. AA5552: Municipalities may impose conditions with regard to the protection of trees. The obligation to take an alternative route is however in conflict with section 5.2(5) of the Dutch Telecommunications Act.

10. Single Judge Charged with Urgent Cases, Rotterdam, 24 September 2001, LJN-number AD9462: Applicant fears irreparable damage to trees. No ground for preliminary relief proceedings.

11. District Court of Rotterdam, 16 January 2003, Telec 01/2428-GERR: Plaintiff is not an operator of a public telecommunications network. It is insufficient that the operator controls the technical management. An operator should have the factual management and control over the network. An operator should be able to control the use of the network and open this network up to everybody who wants to use this.

Section 5.3 Amicable settlement (agreement)

12. OPTA: Van Pallandt van Keppel Stichting v. KPN, Telecom 9 November 2001: In spite of the public destination of the garden as a public park, a part of this garden can be defined as private property, an ‘erf’. Cables in this private property do not fall under the obligation to tolerate cables.

13. OPTA: J.M.J. Best/Crystal Conduct Infra Broker B.V., UPC Kabel/TV en Telecom B.V. en Bredband B.V., 23 July 2001: Ducts are not part of a network and therefore the obligation to tolerate cables does not apply to empty ducts.

Section 5.4 Limited right to remuneration

Section 5.5 Obligation to tolerate cables above the ground and network connections

14. OPTA: Order for periodic penalty payments Stichting Pré Woondiensten, 1 May 2002 (on website): The telecomplace in a private building is not a ‘network connection point’. The owner of the building has to permit KPN to install a network connection point in this place.

Section 5.6 Accession

15. Supreme Court, 6 June 2003, LJN-number AD3591/3578: A cable network is an immovable object. Section 5.6. of the Dutch Telecommunications Act is applicable to cable networks and a cable network can therefore be an independent object that can be owned.

Section 5.7 Relocation as a result of (construction) work

Moment of judgment

16. OPTA: KPN Telecom B.V. v. Gemeente Lelystad, 9 May 2001: The moment at which the municipality files its request to relocate cables is decisive in respect of whether the municipality has the obligation to tolerate cables.

17. OPTA: Crystal Conduct Decision: The piece of ground is a meadow and is in this case not public land. The future plans to turn this meadow into a garden have no influence.

Establishment of buildings, construction of works

18. Supreme Court, 7 December 1929, NJ 1929/788: Plantation is not an establishment of works. The provision in the Telecommunications Act 1904 also applies to the continuation of works.

19. District Court of Rotterdam, 30 November 1995, AB 1996/383: PTT has to bear the costs of the relocation of cables. The fact that it concerns a huge commercial project in which the municipality owner of public ground participates, does not change this.

20. District Court of The Hague, 20 January 1999, docket number 97/3861: Preparing a site for building is an establishment of works.

21. District Court of Maastricht, 21 March 2001, ELRO-nr AB 0667: The construction of a work of art or the redecoration of a square is also an establishment of works.

22. OPTA: KPN Telecom/Municipality of Lelystad, 9 May 2001: The restructuring and the preparing of a site is also an establishment of works.

23. Arbitration Board for the Building Industry, 17 June 2002, BR 2003/439: Preparing a site is a public service of municipalities, and connected works are to be qualified as an ‘establishment of works’.

24. OPTA: Municipality of Breda v. KPN Telecom B.V., 7 March 2003: ‘Preparing a site’ cannot qualify as an ‘establishment of works’. This can only be different for specific parts.

25. OPTA: Decision of an objection of the municipality of Breda for the costs to relocate the cables of Casema, 29 September 2003 (challenged decision dated 11 March 2003): In OPTA’s opinion, the municipality should have given notice of the redevelopment. The municipality must bear the costs of this redevelopment.

26. Appeal Court of The Hague, 27 March 2003, BR 2003/735: The relevant works must be seen as works that are necessary by the one who bears the obligation to tolerate telecom cables.

27. OPTA: Municipality of Best v. Essent Kabelcom B.V., 26 January 2004: OPTA states that the word ‘vanwege’ (on account of) should not be interpreted too broadly. Essent is not obliged to bear the costs.

Necessity


28. District Court of Maastricht, 21 March 2001, ELRO-nr AB0667: It is not sufficient if the party bearing the obligation to tolerate telecom cables wants to relocate these cables on aesthetic grounds.

29. OPTA: Lelystad-decisions: It is also ‘necessary’ if the integrity of a telecom network is being threatened. The presence of cables of KPN in the soil pipe route is a threat to the establishment of the work.

30. OPTA: ’s-Gravezande-decision, 27 December 2001: In this case it was rejected that relocation of cables is necessary for the enlargement of the school square.

31. Letter OPTA to municipality on section 5.7. Telecommunications Act: OPTA cannot render a judgment on the necessity if it cannot use other criteria with regard to the relocation of cables, including the cable closet.

32. Administrative Law Division of State Council, 27 August 2003, case no.: 200202587/1: The Provincial Executive (“College van Gedeputeerde Staten”) should have considered whether the works would imply disproportionate damage to the electricity company.

Costs


33. OPTA: HSL Zuid v. KPN Telecom B.V. , 5 June 2002: HSL is the applicant and in this way the provoker of the accountancy statement. The costs of this statement have a direct relationship to the costs as mentioned in section 5.7(2).

Authority

34. OPTA: ’s-Gravezande-decision: The legislator apparently meant to offer a separate public way by rendering OPTA the authority to judge relocation conflicts.

35. OPTA: Lelystad-decisions: The operator and those bearing an obligation to tolerate cables can both ask OPTA to render a judgment, when they have a dispute on the question whether the conditions of the relocation provision can be fulfilled.

36. OPTA: 23 October 2003: OPTA cannot verify the general conditions between the municipalities and utility.

Section 5.8 Trees and plants

Section 5.9 Legal Authority with regard to damages

Section 5.10 Reasonable request for joint use

Section 5.11 Corresponding appropriateness for broadcasting networks

Other case law:

Obligation to have something examined/KLIC


The Supreme Court, 2 October 1998, NJ 1998/831: A builder cut an Electricity cable which could not be found on the ground plans. The builder did register its intention to dig the ground with KLIC, the Dutch registration system for cables. The court however thought the builder had an obligation to examine the ground more precisely.

35. Cantonal Section of the District Court Sneek 29 March 2001, LJN-number AD6722: The announcement that ‘all cables were next to the road’, is not sufficient to say that the builder should not have thoroughly examined the cables in the ground.

36. Supreme Court 12 April 2002, LJN-number AD9112: The government should at least have given notice of the fact that there was a cable containing a dangerous substance just under the surface of the ground.

37. Appeal Court Den Bosch 10 February 2003, LJN-number AF5672: The builder is obliged to examine the ground if his client is unprofessional. The builder should have registered his intention to dig with KLIC.

Damages


38. District Court The Hague 4 April 2000, LJN-number AA6953, Higher Water Board of Delfland and Duinwaterleidingbedrijf Zuid-Holland v. municipal Executive of Voorburg: The regulation for lost damages in 1991 is a reasonable remuneration for the current damages.

39. District Court Dordrecht 20 April 2001, LJN-number AB1530, Hollandse Eilanden and Waarden Purification Board v. State Secretary of Transport and Water Management: The relocation of cables was necessary to adapt the dikes. The plaintiff is entitled to a 100% remuneration of the costs incurred.