Updates on the new Electronic Telecommunications Code

Cornerstone Telecommunications Infrastructure Ltd v Central Saint Giles General Partner Ltd and another [2019] UKUT 183 (LC)

Summary

As with most forms of litigation, poor conduct during code disputes can lead to adverse cost consequences.

Facts of the case

An operator sought to gain access to complete a survey on a landowner's premises, with a view to installing telecommunications apparatus. The landowner and its tenant were initially reluctant to grant access and the operator therefore issued a claim in the Tribunal. The landowner and tenant were especially concerned about the level of indemnity cover the operator would provide to complete the survey and the wide terms upon which it wished to enter the premises.

The dispute was resolved by the date of the hearing, but the landowner and tenant wished for the Tribunal to make an order on costs, as they had incurred over £100,000 in legal fees. Although the Tribunal accepted the claim made by the landowner and its tenant for costs to be paid by the operator, the Tribunal was highly critical of the way in which all of the parties handled the dispute, which was held to be disproportionate to the issues that had been raised. In particular, the Tribunal criticised the landowner and tenant for the sums they had spent on legal fees. As a result, the operator was ordered to pay the freeholder and tenant just £5,000 each towards their costs, a demonstrably lesser sum than they wanted or had spent.

Impact of the case

The Tribunal's decision was designed to send a message and shows a zero tolerance attitude towards a party's poor conduct and disproportionate costs during a dispute. Landowners should err on the side of caution when denying an operator rights under the code, as lengthy legal battles may be fought at a high price. That said, operators should also take heed of the comments made about Cornerstone's "wooing of potential site providers", which may have "become a little less rough" but who's "technique still has a long way to go."

EE Limited and Hutchison 3G UK v Meyrick 1968 Combined Trust Of Meyrick Estate Management [2019] UKUT 164 (LC)

Summary

The Tribunal has shown further support for the development of mobile telecommunications, and it will prevent landowners from relying on overly technical or disingenuous arguments to deny operators their rights under the code.

Facts of the case

An operator had four leases for various sites on a landowner's estate, each of which was contracted-out of the security of tenure provisions in the Landlord and Tenant Act 1954. In 2017 the operator sought to renew the leases under the old code, but negotiations failed. In 2018, the operator served notice on the landowner under paragraph 20 of the code to obtain new agreements for the sites. The landowner sought to oppose the operator's application on the basis that it was redeveloping the land.

The landowner's redevelopment scheme involved replacing the existing telecommunications masts with taller masts, in order to install fixed wireless broadband. The landowner proposed that the operator would attach its existing antennae to the new masts. By the date of the hearing the landowner had obtained planning permission but the operator confirmed that it would not attach its antennae to the new masts.

Paragraph 21(5) of the code requires a landowner to demonstrate an intention to redevelop in order to oppose the grant of a new agreement under the code. Upon considering the application of paragraph 21(5), the Tribunal assessed whether the landowner had:

• a reasonable prospect of being able to carry out the development, and
• a firm, settled and unconditional intention to do complete the development.

The landowner was able to satisfy the first limb, as it had obtained planning permission. However, on applying the rule in Francis v Cavendish, it was unable to satisfy the second limb, as the scheme was obviously unprofitable. In coming to this conclusion, the Tribunal deduced that the landowner merely devised the scheme to prevent the operator from obtaining new agreements under the code, which would have much lower rents. In other words, had the leases not been in place, the works would never have been considered.

Impact of the case

The Tribunal has confirmed that the test for a 'firm, settled and unconditional intention', devised in the S Frances v Cavendish Hotel case will also apply to applications for new agreements under the code. The robust test firmly supports operators seeking to extend their telecommunication activities in addition to preventing landowners from circumventing new agreements under the code via disingenuous motives.