15 January 2021
RED alert - Winter 2021 – 5 of 7 Insights
The Upper Tribunal (Lands Chamber) has handed down its judgment in Cornerstone Telecommunications Infrastructure Ltd v University of the Arts London, with a rare win for the landowner. In short, the Tribunal decided that the prejudice that would have been caused to the landowner by imposing a Code agreement could not be adequately compensated for in money and that the prejudice would not outweigh the benefit of imposing an agreement.
The operator, Cornerstone, had made an application for Code rights to permanently install and operate electronic communications apparatus on the roof of a building owned by University of Arts London, having been granted interim rights over the site in earlier litigation.
The building, known as the London College of Communications, is situated in Elephant and Castle, South London, an area of significant redevelopment. Whilst the University was not undertaking any redevelopment of the site itself, it had entered into a complex development agreement whereby a developer would build a new campus building elsewhere on the development site, and the University would sell and lease back its current building for 3 years.
The lease back agreement entered into with the developer contained a rolling break clause in favour of the University, conditional on the University delivering up the site with vacant possession. It was vital for the University to exercise the break clause promptly, as after an initial 18 month rent free period, the rent would increase to £3 million per annum.
Despite Cornerstone's arguments that the development might not proceed given the COVID-19 pandemic, the Tribunal found that the prejudice that would be caused to the University by granting a Code agreement could not be adequately compensated by money and decided that the public benefit did not outweigh the prejudice of imposing a Code agreement.
In reaching its decision, the Tribunal considered the prejudice that the imposition of a Code agreement would cause to the University, including:
The Tribunal acknowledged the public need for electronic communications sites but noted that Parliament could not have intended for site owners to comply with this public duty at all costs. Had this been Parliament's intention, the legislation would not have empowered the Tribunal to consider whether the prejudice caused to the landowner was capable of being adequately compensated and to exercise its discretion in this regard. The Tribunal noted that there comes a point when forcing a land owner to comply with its public duty to accommodate network equipment "is too much to ask".
While each reference to the Tribunal will turn on its facts, this decision has provided welcome clarity on when a landowner may resist the imposition of an agreement under the Electronic Communications Code.
It is also interesting to see the Tribunal's view on the public benefit test, especially where the public benefit in the current climate is perhaps even higher than it was when the Code was enacted it.
by Saleem Fazal
by Emma Dooley
by Emma Dooley
by multiple authors