Moving telecoms forward

Posted: 21/12/2022

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In the height of summer, Judge Elizabeth Cooke handed down a pithy judgment in a little-known case – Crawley Borough Council v EE Ltd and another [2022] UKUT 187 (LC); [2022] PLSCS 98. The decision did not get much press, its thunder being stolen just two days later by the much more exciting decision on the ECC from the Supreme Court in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd and conjoined appeals [2022] UKSC 18; [2022] EGLR 28. However, as the end of the year approaches, Crawley is worth revisiting.

Landmark decision

EE was granted a lease of the site in 2003 for 15 years. This was a protected tenancy under the Landlord and Tenant Act 1954. Before the fixed term expired, the landlord served a section 25 notice under the 1954 Act on the tenant.

The date cited in that notice for the commencement of the new tenancy (“the statutory deadline”) passed without EE issuing proceedings claiming a new tenancy. Paragraph 30 of the Electronic Communications Code provides that new code agreements will continue past any fixed-term and provides a procedure for an operator to obtain new code rights.

However, Part 5 does not apply to leases granted prior to the coming into force of the Code which are protected tenancies. As such, after the statutory deadline passed, EE was without any rights to occupy the site. Accordingly, the landowner served notice under paragraph 40 of the Code (contained in Part 6) to enforce the right to remove the equipment contained in paragraph 37 of the Code. Pursuant to paragraph 44 of the Code, the tribunal had no discretion but to make an order requiring EE to remove the equipment and restore the land. It duly did so.

The order in Crawley is the first of its kind, and as noted above, was decided before Compton Beauchamp. Post-Compton Beauchamp, it might be thought that such orders will become more difficult to obtain. As also noted above, is a necessary pre-condition for an application for such an order that the applicant has the right to require removal of the apparatus. In this case, the landowner relied on paragraph 37(3), which applies where the right has come to an end or ceased to bind the landowner. It is now clear that a paragraph 20 notice can be served seeking new code rights and as long as the paragraph 20(3) application to the tribunal is made before an order is made requiring removal, paragraph 40(8) of the Code prevents a removal order being made before the paragraph 20(3) application is determined.

Accordingly, following Compton Beauchamp, an operator might protect its position by serving a paragraph 20 notice and making an application pursuant to paragraph 20(3), even where it has already missed the statutory deadline.

The National Connectivity Alliance

Last month, at the RICS UK Telecoms Conference 2022, the National Connectivity Alliance was launched. The alliance is the coming together of stakeholders across the telecommunications industry, including telecommunications and infrastructure providers, landowners, and their collective professional advisers.

The aim is to create a forum for a broad spectrum of players in the field that will foster collaboration on areas of mutual interest, delivering world-class connectivity for all in the UK.

In its press release, the NCA said: “Digital connectivity is fundamental to the success of our economy. Communities depend on reliable connections to stay connected; to ensure social inclusion; to enable businesses to embrace digital technology; and, to open up new markets and simplify supply chains. Building such connectivity requires the complex interchange of many organisations and stakeholders yet these interactions have not always been easy.”

The NCA seeks engagement from all in the industry, and particularly encourages stakeholders to attend or simply “drop in” to its working groups to draw attention to problems, bad drafting or other issues arising in relation to the Code. These might be addressed by lobbying for legislative change by the NCA, amendments to code of practice or via template agreements.

The NCA will be delivering its work via a range of outputs covering the Ofcom Code of Practice, guidance on access and the International Commission on Non-Ionizing Radiation Protection, site design, lift and shift, costs and expenses, and also via educational pieces and exercises in communication across the sector.

The NCA can be contacted via its website at ncalliance.org.uk and by e-mail: info@ncalliance.org.uk.

This article was published in Estates Gazette in December 2022. 

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