Chorus Legal dont understand the LAW regarding easements?

Forums › ICT Policies and Regulation › Chorus Legal dont understand the LAW regarding easements?

alt0174

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#201386 16-Aug-2016 18:20

Im hoping someone at Chorus sees us. I have applied for UFB via Vodafone and they are stuck on the "requiring consent" issue because we have a shared driveway.

1) Our neighbors are away all the time, and are quite elderley so doing things via email is difficult for them, so I have not been able to obtain their signature on a consent form yet.

2) They have signed up for UFB and have had a site visit, yet we have not been required to sign a consent form for them.

3) Both of our properties have easements attached for the "Right to convey telecommunications" (among st other things), meaning consent is not required.

No one at Vodafone or Chorus can seem to understand that consent is not required for us to install broadband. I have attached a copy of the easement (which I have sent to Vodafone. I asked them for an email address to send it to and they told me www.vodafone.co.nz but thats a story for another day!)

I am hoping someone here can connect me with the right people to move this forward. We already have telecommunications ducting in place so it should be an easy install.

It would also be interesting to find out, given the fact we are 2 identical townhouses (connected together) why they did not require consent but we do?

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#1612643 16-Aug-2016 18:45

UFB is not an essential service like copper so things are treated didfferently.

Chorus don't handle the consent process, so while they may be able to help they're not the ones actually processing these.

phantomdb

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#1612654 16-Aug-2016 18:56

sbiddle:

UFB is not an essential service like copper so things are treated didfferently.

Chorus don't handle the consent process, so while they may be able to help they're not the ones actually processing these.

Since phone service is now delivered over fiber would that change the implications of essential.

i see it as essential infrastructure.

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DarthKermit

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#1612655 16-Aug-2016 18:57

As usual, legislation hasn't kept up with technology.

hio77

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#1612656 16-Aug-2016 18:58

phantomdb:

sbiddle:

UFB is not an essential service like copper so things are treated didfferently.

Chorus don't handle the consent process, so while they may be able to help they're not the ones actually processing these.

Since phone service is now delivered over fiber would that change the implications of essential.

i see it as essential infrastructure.

Agreed, hopefully it will catch up eventually....

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Behodar

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#1612661 16-Aug-2016 19:08

phantomdb: Since phone service is now delivered over fiber would that change the implications of essential.

i see it as essential infrastructure.

On the other end of the scale, with it now being common to not have a landline, should a copper phone service still be "essential"?

Back to the topic at hand, if your neighbour has ordered UFB themselves then it should be "deemed consent" for you to get it too.

Jase2985

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#1612662 16-Aug-2016 19:12

easements dont cover UFB, as others have mentioned it requires some legislation change

richms

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#1612663 16-Aug-2016 19:13

We had to give concent for the neighbor at mums old place because even tho there are 2 serparate titles for drives, the concrete runs down the middle of the 2 titles so chorus consider it to be shared.

Was an epic drama too, they send a thing to do it online, and then pester you by phone to send things back after doing the online thing.

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froob

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#1612673 16-Aug-2016 19:37

I think there is a bit of confusion in this thread - there is no legislative change required for telecommunications easements to apply to UFB. It will just come down to the wording of the easement itself. My guess is that most telecommunications easements are worded widely enough to also apply to future services such as UFB.

That begs the question why Chorus requires this consent as a standard step, because most properties on a shared driveway will have an easement for telecommunications, or some other means of having telecommunications services legally provided to the house.

My assumption has been that it is just easier for them to ask for consent in each case as a blanket policy, rather than looking into the legal rights already attached to the properties.

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Jase2985

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#1612675 16-Aug-2016 19:43

froob:

I think there is a bit of confusion in this thread - there is no legislative change required for telecommunications easements to apply to UFB. It will just come down to the wording of the easement itself. My guess is that most telecommunications easements are worded widely enough to also apply to future services such as UFB.

That begs the question why Chorus requires this consent as a standard step, because most properties on a shared driveway will have an easement for telecommunications, or some other means of having telecommunications services legally provided to the house.

My assumption has been that it is just easier for them to ask for consent in each case as a blanket policy, rather than looking into the legal rights already attached to the properties.

I dont believe that is correct

http://tinyurl.com/hu4onzn

Page 9 and 10

hence the GOVT undertaking the "Land access changes to streamline UFB rollout" process

froob

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#1612710 16-Aug-2016 20:00

Jase2985:

I dont believe that is correct

http://tinyurl.com/hu4onzn

Page 9 and 10

hence the GOVT undertaking the "Land access changes to streamline UFB rollout" process

Can you be more specific about which part you don't think is correct? The main issues in the easements section of that discussion document seemed to be:

- There may be no easement in place.

- If there is an easement in place, its terms may not be suitable for UFB.

Those are both valid issues, but they aren't issues in cases like the OP's where there is an easement in place that is apparently wide enough to cover UFB. The discussion document doesn't seem to have quantified the issue, which would likely be difficult to do. But, I suspect the bigger issue would be the administrative time and cost involved in downloading and reviewing each title and easement, rather than a lack of legal rights in a significant proportion of cases.

Interestingly enough, Chorus' consent form actually contains a confirmation that they can exercise the rights under the customer's easement:

"Chorus may exercise rights as my licensee (for the purposes of the Land Transfer Regulations 2002) in respect of any existing telecommunications easements granted in favour of me or my property."

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Jase2985

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#1612714 16-Aug-2016 20:05

"apparently" that is the problem, its not a clear yes or no

hence the air on the side of caution approach of gaining consent

dejadeadnz

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#1612716 16-Aug-2016 20:07

On the face of things, I agree that the easement looks wide enough to cover UFB. However, you can't be sure unless you know that there is (or isn't - as the facts may be) a definitions section where the word "telecommunications" is defined. If it is defined and it references, say, some legislation (for example) that clearly contemplates copper lines only, then you'd have a problem. Of course, the definition section may also define the word very widely.

As a lawyer, I wouldn't make a definitive call without seeing the whole document. Actually, in my case I would probably defer to a property specialist since I hate property law but that's another matter

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#1612753 16-Aug-2016 20:29

alt0174:

2) They have signed up for UFB and have had a site visit, yet we have not been required to sign a consent form for them.

So, are they getting UFB installed by Chorus, in the same fashion you require and are not getting???

This comment confuses me. How can they get it and you not, unless their install is not going via the driveway?

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alt0174

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#1612756 16-Aug-2016 20:34

OK, so I just got an update from my neighbors. They sent the consent form off last Monday. Im guessing its in the lost forms pile.

It would appear that the entire UFB signup process has been designed from Choruses viewpoint. ie lets make it as difficult as possible for people to sign up and put obstacles in the way, rather than designing a process to encourage signups and assist users where possible.

As long as they think their processes and customer engagement is adequate nothing is going to change.

I guess I will ring Vodafone again tommorow and speak to a guy who will tell me "dont worry, well sort it, just email me at www.vodafone.co.nz ).

At least I have my health (although I feel a headache coming on)

froob

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#1612797 16-Aug-2016 21:16

Good that it sounds like the issue is sorted.

"apparently" that is the problem, its not a clear yes or no

hence the air on the side of caution approach of gaining consent

The reason for my "apparently" is that the OP hasn't posted a copy of the whole easement, and as dejadeadnz said, you would need to look at other parts of the easement to give a yes or no. Note that I'm not suggesting the OP or anyone else post an entire easement on here, as they can be used to determine the property address.

That's not to say that every easement will be completely clear one way or the other, and I agree with your point that Chorus may have made a conscious choice to be cautious and obtain the consents regardless.

For anyone interested, newer telecommunications easements will often use the "default" terms and conditions from the regulations referred to in the paragraph from the Chorus consent form above- see Schedule 4 of the Land Transfer Regulations 2002. The definition of "easement facility" in those regulations for telecommunications is very wide.

Older easements won't have any default terms specifically for telecommunications, and it will just come down to the wording of the easement. Hopefully though, it will be clear whether or not the easement is restricted just to copper

One other issue that occurred to me is the practice of granting an easement to the utility supplier directly, rather than to the neighbours. There will be a lot of easements out there granted to Chorus "in gross", which would be fine in Chorus areas, but wouldn't be much help to other LFCs in their areas.

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