Paragraph 21(5) of the new Electronic Communications Code enables landowners to resist the imposition of Code rights if they intend to redevelop their land and cannot reasonably do so if Code rights are granted. The question that arose in EE Ltd v Trustees of the Meyrick 1968 Trust [2019] UKUT 164 (LC); [2019] PLSCS 131 was: is this protection available if an operator seeks Code rights over land, but the landowner plans to redevelop by erecting its own mast instead?
Paragraph 108 of the Code specifically prevents operators from acquiring Code rights over electronic communications apparatus, as opposed to “land”. So, if a landowner erects its own mast, it cannot be subjected to Code rights – and the landowner would be free to demand whatever price it wants for the use of its mast and to negotiate whatever terms it wishes with telecommunications operators.
The telecommunications operator that had applied for Code rights in this case argued that the Tribunal was bound by the case law that applies under section 30(1)(f) of the Landlord and Tenant Act 1954 (opposition to the grant of a new business tenancy where a landlord intends to redevelop), because section 30(1)(f) and paragraph 21(5) are expressed in similar terms. The Tribunal disagreed – but it did accept that the principles applicable in cases involving ground (f) should be adopted, where relevant. Therefore, the landowners in this case needed to show that they had a reasonable prospect of being able to carry out the redevelopment and that they had a firm, settled and – following the Supreme Court decision in S Franses Ltd v Cavendish Hotel (London) Ltd [2018] UKSC 62 – unconditional intention to do so.
The planning authority had granted planning permission for the erection of the mast. And, although the Tribunal was sceptical about the financial viability of the scheme, it accepted that the landowners had sufficient financial resources to pay for a mast. Therefore, they had a reasonable prospect of being able to implement their scheme.
But did the landowners have a firm, settled and unconditional intention to do so? In cases involving section 30(1)(f), the test of “unconditionality” that applies is: would the landlord have proposed the same work, had the tenant decided to leave voluntarily? This is because, in Franses, the Supreme Court ruled that a redevelopment conceived purely to prevent a tenant from acquiring a new business lease will not suffice for the purposes of ground (f). And, by analogy, a redevelopment conceived purely to prevent the acquisition of Code rights will not satisfy paragraph 21(5) either.
The landowners claimed that they wanted better broadband on their estate, but they had not approached their providers to discuss improvements to the service and the new mast was not the only, or even the best, way of improving their broadband. Furthermore, because the operator was not prepared to use the landowners’ mast for operational and commercial reasons, it appeared likely that the scheme would prejudice access to mobile coverage as well. So it was wholly implausible that the landowners, as trustees, would waste their resources on it. Consequently, the Tribunal came to the conclusion that the scheme had been devised to defeat the claim for Code rights, which meant that the landowners could not rely on paragraph 21(5) of the Code.
Allyson Colby is a property law consultant
