What does the new Telecoms Code mean for you?

Decisions concerning the new Telecoms Code are now being issued thick and fast by the Tribunal, with three decisions in April 2019 and one in May 2019. We explore the new decisions below to find out what they mean for landowners. 

Of the April decisions, two touch on the same point; whether Code rights could be ordered to be granted over land already occupied for the purpose (in specific factual circumstances), with the third dealing with rights to require apparatus to be removed to facilitate access to a new residential development. However, the range of points arising on these three cases alone is broad, demonstrating that there is still a smorgasbord of issues still up for determination under the new Code. The takeaway is largely that technical points arising in relation to the wording of the Code are unlikely to assist landowners, where Operators might have more luck. As with the earlier cases, these three decisions demonstrate that, in general, it is still very much an Operators’ world, save in cases where there is almost complete disregard for the intended process set out in the Code. 

The fourth case is of real interest to providers of social housing, since it features Clarion Housing Association.

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In these decisions we also get to grips with some colourful language, as we grapple with the concepts of ‘swiss cheese’ versus ‘cheddar’ rights, and deal with clever arguments presented by the eminent Brie Stevens-Hoare, QC. So, before we feta, sorry, fetter (couldn’t resist – sorry!) your appetite for Code decisions further, let’s dive straight in to the first case on our list for this round-up. 

Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd 

The first is Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] UKUT 107 (LC), 3 April 2019 and is a decision of the Deputy President Martin Roger, sitting with a professional member. 

The broad outline of the facts of the case are as follows: The Operator made an application for rights over a site on the Respondent’s land which was at the time of the notice, and the hearing, occupied by Vodafone. Vodafone are a company who own a significant share-holding in CTIL, the Applicant, but the identity of the occupier of the land regardless was quite distinct from the identity of the Applicant. The Operator had been in contact with Vodafone who had indicated that they would give up their rights over the land should the Tribunal impose an agreement on the Respondent in favour of the Operator. However, Vodafone were not joined to the proceedings, nor did the para. 20 notice served by the Operator or the draft agreement make any reference to the continuing rights over the land enjoyed by Vodafone. 

Despite that fact that the position of Vodafone was precarious (who were occupying under a periodic (continuation) Landlord and Tenant Act 1954 Act tenancy following expiry of the fixed term), the Tribunal dismissed the application in favour of the landowner. The Tribunal considered that the drafting of paragraph 9 of the Code laid down a fundamental rule that only an occupier could confer Code rights on an Operator. Because the landowner was not in occupation (the Tribunal rejecting several means by which the Operator sought to bring the landowner within the usual meaning of ‘occupier’ in landlord and tenant law), and because Vodafone were in occupation, no Code rights could be imposed unless the occupier were involved somehow. The Operator’s application sought an order that the landowner be required to confer rights on the Operator notwithstanding that it was not an occupier of the site at the date of the notice, was not an Operator at the date of the hearing and would not be an Operator as at the date the Order was made. As such, the Tribunal agreed with submissions that the fact that the landowner was not in occupation went to the issue of jurisdiction. The application had to be refused because the UT could not order the landowner to do something which he was unable to do so because the Tribunal lacked the jurisdiction to make such an Order. Secondly, in the event that the Tribunal was wrong on the jurisdiction point, because Vodafone were not party to the proceedings and because neither the Operator’s Statement of Case nor the draft Agreement referred to the grant of rights being contingent on either Vodafone’s agreement or occupation being given up, it had to fail. 

 

Cornerstone Telecommunications Infrastructure Ltd v Keast 

The second of the three is Cornerstone Telecommunications Infrastructure Ltd v Keast [2019] UKUT 116 (LC), issued on 8 April 2019 by Judge Elizabeth Cooke.

The decision was made following the claimant’s application for rights pursuant to Sch. 3A of the Communications Act 2003 over farmland in Cornwall. The land in question was, at the time of the application, occupied by Vodafone, who occupied under a protected (1954 Landlord and Tenant Act 1954) lease until expiry in 2015. As set out above Vodafone is a major shareholder in CTIL but the two are distinct entities. The case concerned a small number of rather technical points argued by the landowner in an attempt to defeat the application by the Operator. These were decided as preliminary points. 

The points arising were: (1) Whether the right which the claimant sought were different from those set out in its notice, and if so, whether the claimant is permitted to bring its application for the rights in the form before the Tribunal. (2) Whether the claimant was seeking rights over land or in fact, over communications equipment (since there was already equipment on the land) (3) Whether the claimant was seeking rights which were not in fact Code rights and accordingly, not rights which the Tribunal could confer and (4) Whether the claimant was of the correct standing to bring the application for the rights sought.

There was a fifth issue which concerned whether the Applicant could seek the rights claimed given the continuation of the Vodafone lease. The Tribunal dictated that that issue would be determined by the same following the decision in CTIL v Compton Beauchamp, dealt with above, and the decision on this point is expected to follow the determination made by the Tribunal in that reference. 

On the first issue, the Tribunal held that the point was badly made, and ignored the content of the Statement of Case as a whole (by focussing on one paragraph of the same to the exclusion of the rest of the pleading). The Judge found that it was not correct to say that the rights sought in the Statement were different from the paragraph 20 was incorrect and the Respondent could not have been misled as to what the Operator was seeking. 

On the second, the Tribunal found that it was not the case that the Applicant could not apply for rights over the whole of the land because some parts of it were covered with chattels (being ECA or something else). As such, the presence of Vodafone’s equipment on the land did not affect the Operator’s application which the Tribunal held was correctly made in relation to the land. The Tribunal commented that in the event that the land were covered by ECA belonging to a ‘non-friendly’ Operator, and the Operator were successful in obtaining rights over the same, the Operator might find itself in a difficult situation since the rights would not allow them to either use or remove the in situ ECA, but in this scenario, that would not apply since the Operator and owner of the ECA on the land (in this case, Vodafone) would simply come to an agreement at private law as to use/acquisition, and that in any event, this was a private matter between CTIL and Vodafone. This has been referred to a question of whether the effect of the Operator’s application was for ‘swiss cheese’ rights (excluding the spots where the equipment was sitting) or ‘cheddar’ rights (existly flatly across the whole site). 

As regards the third issue, the landowner complained that the Tribunal did not have jurisdiction to confer rights on the Operator to install a generator, to compel him to enter into agreements with third parties, to restrict access to the site, etc. The Tribunal found that while it might be a rare occurrence for the Tribunal to impose positive obligations on a landlord the Code itself did not support a reading that there was no jurisdiction to do so, with reference to para. 23. As such, the third issue was also determined in favour of the Operator.

With regard to the fourth issue, the Tribunal rejected a technical around centring around whether the Operator was an organisation that could obtain Code rights over land arising from the wording of ss.106(5)(c) of the Communications Act 2003 which was amended by the Digital Economy Act 2017. Again, the Tribunal rejected the landowner’s arguments on this point, holding that as a result of the Direction issued by OFCOM, the Operator had a ‘straightforward and unlimited direction relating to infrastructure under the new Code’ (para. 96).  

Evolution (Shinfield) LLP v British Telecommunications PLC

The third case is Evolution (Shinfield) LLP v British Telecommunications PLC [2019] UKUT 127 (LC) 15 April 2019. In that case, a consortium of developers (Evolution, represented by Brie Stevens-Hoare, QC) sought to bring their case within para. 38(2) of the Code in order to avoid a bill of around £300,000 arising in respect of the costs of relocating telecoms equipment owned by the Respondent, BT. The equipment in question was a telecoms cabinet situated on an adopted footpath. The Applicants wanted the cabinet moved so as to allow them to complete a new accessway to a large residential development. Para. 38(2) provides that an owner of neighbouring land has a right to require the removal of electronic communications apparatus under the Code if that equipment interferes with or obstructs a means of access to or from the neighbouring land. The developer were unsuccessful, with the Tribunal concluding that in order for para. 38(2) to be engaged, the means of access referred to in the paragraph had to be an actual, existing means of access, not a potential means. The decision was taken both on the wording of the subparagraph, and with reference to policy considerations which would stem from a decision to the contrary. 

Cornerstone Telecommuncations Infrastructure Ltd v (1) Central Saint Giles General Partner Limited and (2) Clarion Housing Association Limited

In the final case, the Operator initially sought access for a non-intrusive survey. There was no substantive objection to a survey but the parties could not agree the level of indemnity which should be given by the Operator to the First Respondent, who was the freeholder (Clarion holding an inferior interest). Matters become protracted and in due course the Operator served notice requesting a multi skilled visit (for a more thorough survey) and indicated that they would also seek a determination from the Tribunal that they had the right to place equipment on the roof top of the building in question on an interim basis. It was therefore a broad request.

Substantive matters between the parties were eventually settled, but costs could not be agreed and so the principle and quantum of costs came before the Tribunal for determination. The judgement is something of a cautionary tale, since whilst the Operator was ordered to pay the first and second respondents costs the Tribunal was quite free with its criticism of all parties. Giving judgment, Martin Rodger, the Deputy President stated that the first respondent was at fault, for “maintaining that the claimant was asking for something wholly unreasonable” and behaving in a way which was “at best obtuse, and at worst deliberately obstructive…”. However, the claimant was said to be culpable for the confusion, but should not be expected to pay the full amount of costs said to be incurred by the respondents which was in aggregate circa £100,000. The second respondent was unflatteringly said to have “hitched itself to the arguments of the first respondent” as such the Tribunal found that they “must take the consequences”. The consequences were that the first and second respondents’ costs were assessed in the sum of only £5,000 each, meaning that only around 10% of the costs incurred were actually recovered by the respondents. 

Whilst telecoms matters can be contentious and protracted, the decision illustrates the need to keep a calm head and to deal with issues proportionately. The Tribunal has made it clear that being approached by an Operator, even in an confusing and potentially aggressive fashion, does not constitute carte blanche to run up large costs. The takeaway for providers of social housing and landlords is that telecoms applications by Operator are now something of a fact of life, which, notwithstanding the uncertainty around the new Code, need to be dealt without disproportionate costs arising. Because we routinely provide advice and representation in relation to agreements under the New Telecoms Code, licences and wayleaves, our lawyers’ practical experience and technical skills mean that new agreements can be negotiated and executed quickly and in a cost-effective manner. Where disputes are inevitable, our industry knowledge around how Operators work means that we are well placed to exert maximum pressure on behalf of our clients. This means disputes are resolved promptly and without unnecessary expenditure. 

The Penningtons Manches Cooper LLP offering in property-related telecoms matter is led by Laura West.

 

Laura West, Senior Associate (Barrister) at Penningtons Manches Cooper LLP

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