Help: a cable is in the way!

The Netherlands is full of cables and pipes, estimated to total about two million kilometers. In other words: 50 times (!) around the earth. The chance that during the realization of a project (where groundwork is necessary) a cable or pipeline will be encountered is therefore not insignificant. What if that cable is in the way and the construction project cannot be carried out (unchanged)?

Case study

X owns a plot of land and wishes to develop and realize a project here. To this end, he engages contractor Y. Among other things, contractor Y is instructed to drive piles into the plot of land. Y's investigation reveals that there is a medium-voltage cable in the ground, exactly at the point where one of the piles is projected. X does not know whether the cable is in use.

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Who does the cable belong to?

A first question, of course, is: to whom does the cable belong? This is both a practical question (you may want to know what the cable is for and with whom you need to consult) and a legal one. Article 5:20(1) stipulates that ownership of land includes "buildings and works permanently united with the land. At first glance, one might draw the conclusion that the owner of the land, is also the owner of the cable. That flyer really does not (always) hold true.

Indeed, Article 5:20(2) states that the ownership of a network, consisting of one or more cables or pipes, belongs to the "authorized constructor of the network. That authority may lie in private law or public law permission to construct the network.

In the case of a medium-voltage cable, a grid operator will (usually) be the owner (assuming that grid operator qualifies as the authorized constructor). Now that the ownership question has been answered, another (for X) important question remains:

Should X tolerate the presence of the cable?

The answer - perhaps not unexpectedly - is "it depends. In principle, it is only up to the owner of a plot to use this plot. This includes (ex Article 5:21 paragraph 1) "the authority to use the space above and below the surface". In principle, therefore, an owner does not have to tolerate the presence of another person's cable/pipe in/on his plot.

Article 5:21 paragraph 2 BW formulates an exception: "The use of the space above and below the surface is permitted to others, if this takes place so high above or so deep below the surface that the owner has no interest in opposing it." This is an understandable exception: after all, without an interest there is no claim. In this case, however, X does have an interest: the realization of his project is hindered by that cable.

The exception may also lie in contractual consent (in other words, an agreement). If X has agreed with the grid operator that that medium-voltage cable may lie there, this is simply an agreement to which X must comply. This will come as little surprise to X.

Another possibility under which X must tolerate the presence of that cable can be found in a right in rem, such as an easement (or building lease). An easement can be established by one of X's legal predecessors (as owner of the parcel) (and can imply that the presence of that cable must be tolerated). However, an easement may also be created by prescription. It is beyond the scope of this article to elaborate on this, but one must be aware that such an easement (containing that the landowner must tolerate the presence of a cable/pipeline) can exist, without this being recorded somewhere in writing (in a notarial deed).

What should X do?

Ultimately, X will have to enter into discussions with the owner of the cable to reach a solution. In the extreme case, X can demand that that cable be removed, all depending on whether the owner owns any right to that cable which requires X to tolerate its presence.

Conclusion: investigate the location of cables and any charges resting on the plot

A cable or pipe that is in the way (for the realization of a construction project). It is not unique in the Netherlands. The key question, of course, is how this should be resolved: this will depend on the concrete circumstances of the case, the question of who owns the cable and the question of whether that owner owns any right that requires the owner of a plot to tolerate its presence. That question is not always easy to answer.

Since the location of cables and pipelines can have a major impact on the realization and/or development of a project, all actors involved (in a construction project) would do well to research in advance the location of all cables and pipelines in the project area - which is, moreover, mandatory in the context of earth-moving work.

One thing that contractors/project developers/landowners should at least remember: an owner's obligation to have to tolerate the presence of a cable may be (dormant). This can have major implications for the realization (and/or planning) of a construction project.