In the first decision of its kind, the Upper Tribunal (Lands Chamber) has ordered the removal of apparatus under paragraph 40 of Schedule 3A of the Communications Act 2003 – the Electronic Communications Code – in Crawley Borough Council v EE Ltd and another [2022] UKUT 158 (LC).
One of the problems with the old code, contained in Schedule 2 to the Telecommunications Act 1984, was that it was very difficult for landowners to get rid of electronic communications apparatus on their land which was not supposed to be there – either because there had been no arrangement for it or rights had expired. Paragraph 30 of the new Code contains a clear right of removal.
Part 5 of the Code provides that Code rights continue after the expiry of the agreement by which they are granted and prescribes the procedure for an operator to obtain new Code rights or have their existing agreement amended. However, Part 5 does not apply to leases granted prior to the Code coming into force which were protected by the 1954 Act.
Under paragraph 37 of the Code, a landowner has a right to remove electronic communications apparatus if a Code right entitling an operator to keep the apparatus in, on or over the land has come to an end or has ceased to bind the owner and where the right was granted by a lease to which Part 5 of the Code does not apply. Paragraph 40 of the Code provides for the enforcement of the right of removal. A landowner can seek from the tribunal an order for the removal of the equipment within a specified time, for the land to be restored to its pre-installation condition and for the operator to pay compensation.
In 2003, the respondent was granted a lease of a football stadium for 15 years protected by the Landlord and Tenant Act 1954. Before the lease expired, the claimant served a notice under section 25 of the 1954 Act proposing terms for a new lease. The respondent was granted a number of extensions in which to commence court proceedings but, inadvertently, failed to do so. The lease came to an end in April 2021.
It was agreed that the respondent had no Code rights and, even though it remained in occupation, it could not acquire new Code rights by serving paragraph 20 notices because of the effect of the Court of Appeal decisions in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755 and Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd [2021] EWCA Civ 90; [2021] EGLR 14. The Supreme Court heard appeals against those decisions in February 2022 and judgment is awaited.
The respondent wished to continue to use the site and, having served paragraph 20 notices in respect of another part of the stadium, sought a stay of the proceedings pending the outcome of the Supreme Court appeals. Since the landowner has the right to remove the apparatus under paragraph 37, the tribunal had no discretion to stay the reference and ordered the equipment to be removed within six months of the order.
Louise Clark is a property law consultant and mediator
