Are property owners liable in any way for damage or injury caused by abandoned telephone poles situated on their property where they have been informed that an abandoned pole is liable to fall?
A pole in my front garden has been marked as “dangerous” for more than 20 years. The pole has not been used for many years and Eircom engineers refuse to use it for safety reasons.
The company has been asked a number of times for permission to remove the pole but refuses to engage. The Department of the Environment, Climate & Communications attempted to get the company to engage with the matter, but failed. Apparently the 1863 (section 14) provisions that compelled telecommunications companies to deal with abandoned and dangerous plant have somehow been repealed or have otherwise lapsed without any trace. There is now, I am told, no public policy governing whether or not utility providers can abandon decayed and dangerous plant.
The company said in 2020 that it will not remove the pole because its existence is evidence of wayleave rights.
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The pole, if/when it falls, will be guided by its stay-wire on to the public road and footpath. The local county council has confirmed that it has no role in such matters. The pole is on my property and the stay-wire is located on an adjacent property. The stay-wire crosses the public footpath.
The situation created for the property owner here is interesting if for no other reason than the apparent “washing of hands” being engaged in by (i) the Department of the Environment, Climate and Communications, (ii) Eir (as successor to Eircom), the owner of the national infrastructure including poles, and (iii) the local county council (the local authority).
As the telephone pole has been identified as being dangerous and as something which could, if it fell, cause injury or damage to persons, animals or property, there is a clear responsibility in law to remove the offending pole.
It may be that the owner of the pole is in fact trespassing on the property and as such has legal responsibilities, with remedies against it in the courts if it fails to honour its obligations
The property owner, upon whose land the offending telephone pole is sited, has taken reasonable steps to seek to have it removed. However, those efforts over the years appear to have come to nought, as the State, local authority and the commercial entity, which has some responsibility, have failed to act.
There is reference in the question to “the company”, saying “in 2020 that it will not remove the pole because its existence is evidence of wayleave rights”. If this company is seeking to assert wayleave rights over the owner’s property, then it should be in a position to produce evidence of the granting of such wayleave. Neither the company nor its predecessor in title had any right to put the pole on the property without first securing the consent of the owner to do so.
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Even if there was a written agreement, there should have been provisions in it to permit the owner of the property to seek to have the pole removed if it was causing an obstruction or became dangerous.
At this stage, it may be that the owner of the pole is in fact trespassing on the property and as such has legal responsibilities, with remedies against it in the courts if it fails to honour its obligations.
The property owner may have a potential liability if the pole falls and causes injury or damage.
A person who suffers injury or damage will in the first instance seek to claim against the property owner on which the pole is standing, even though that owner may have a right of indemnity and or contribution from the company that claims to be the owner of the pole.
The property owner should have public and occupier’s liability insurance in place in the event of any damage or injury being caused by the pole or any other objects associated with it.
A letter should also be sent by registered post to Eir setting out the dangers of the pole and indicating that if any injury or damage is caused to a third party, Eir will be held responsible for same.
The property owner does have a potential liability for having a dangerous object such as this pole on their property
The property owner should state in the letter that as a number of attempts have been made in the past to have Eir remove the dangerous pole, it is intended to have it removed within a reasonable period of time (perhaps 28 days) at the expense of the property owner, who will then claim the cost of removing the pole from Eir.
Such a letter should be sent to Eir Headquarters, Property Section, and copied to the relevant Government department and to the local county council.
If at the end of the 28-day period the pole has not been removed, the property owner should arrange to have it removed, pay the cost involved, and reclaim that amount from Eir.
Put simply, the property owner does have a potential liability for having a dangerous object such as this pole on their property, which may cause injury or damage. There is an obligation on the property owner to try to avoid any damage being caused, for undoubtedly any injured party will seek in the first instance to proceed against the unfortunate property owner in this case.
The question of the stay-wire crossing the public footpath can be addressed simply by putting the local county council on notice that it is the intention of the property owner to abate and reduce the risk of injury and damage, and to do so it is necessary to remove the stay-wire.
If there are stay-wires sited on another property, the owner of that property should be made aware that it is intended to have the offending pole and stay-wires removed in the interest of safety and to avoid damage or injury to persons, animals or other property.
Patrick O’Connor, senior partner, P O’Connor & Son solicitors, Swinford, Co Mayo
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