The Upper Tribunal (Lands Chamber) has dismissed an application under Schedule 3A to the Communications Act 2003 – the Electronic Communications Code – to inspect and carry out an intrusive survey of rooftop premises to ascertain whether it would be a suitable site for telecommunications equipment in EE Ltd and another v 100 Nox SARL [2022] UKUT 130 (LC); [2022] PLSCS 92. The decision contains lessons for operators and solicitors alike.
The respondent was a company registered in and with its registered office in Luxembourg. It was the registered owner of property at 100 New Oxford Street in London, which was the subject of multiple leases. The claimant’s agent wrote to the respondent at its registered office in Luxembourg seeking access to the building in October 2021 but received no response. A chasing letter also received no response.
In January 2022, the claimant served a notice under paragraph 26 of the Code seeking interim Code rights by international tracked delivery requiring a signature. The accompanying paragraph 26 agreement cited the correct parties but the notice was addressed to the Mayor and Burgesses of the London Borough of Lambeth. The notice was not signed for and no response was made to it. Despite this, the claimant issued the reference in March 2022. It was served on the respondent at its registered office by the UT together with directions stating the hearing date of 13 May 2022. The respondent neither responded to the notice nor appeared at the hearing.
The tribunal has a discretion to make an order conferring interim Code rights if satisfied that the respondent has received notice of what is proposed and the claimant can show a good arguable case that the test for the grant of interim Code rights in paragraph 21 of the Code is met, ie that the public benefit likely to result from making the order – access to a choice of high-quality electronic communications services – outweighs the prejudice to the respondent.
However, the UT refused the application for the following reasons:
- The claimant had not established that the respondent knew of the application. There was no evidence that the respondent had received any communications, nor any evidence that the claimant had made a real effort to contact the respondent. Common sense required them to visit the property, enquire of the occupants of the building or seek to identify other operators through whom contact with the respondent might be made;
- The paragraph 26 notice was mis-addressed. The UT saw no reason why an overseas respondent would not have been misled by a notice that was clearly not addressed to it;
- It was not clear that the claimant had identified the correct respondent. No evidence was adduced to prove that the rooftop was not let, and the claimant had only checked one of two registered leases of the top floor of the building;
- There was no evidence of what the claimant intended by way of intrusive survey of the roof. Without this, the UT was unable to perform the balancing exercise required even on a “good arguable case” basis.
Louise Clark is a property law consultant and mediator
