Telecommunications – Electronic Communications Code – Claimant landowner making reference to Upper Tribunal to enforce right to remove electronic communications apparatus from site under para 40 of Electronic Communications Code – Respondents seeking to stay reference – Whether tribunal having discretion to stay reference – Claimant’s application granted
In 2003, the claimant local authority granted the respondents a lease of a site at the Broadfields Stadium, Brighton Road, Crawley for a term of 15 years, which was protected by the Landlord and Tenant Act 1954. They installed electronic communications apparatus (ECA) on the site.
Prior to its expiry, the claimant served notice under section 25 of the 1954 Act seeking to determine the lease on its term date and proposing terms for a new lease. It gave the respondents a number of extensions of time in which to commence court proceedings. The last of those extensions expired in April 2021, without proceedings being commenced.
Therefore, the claimant had a right to require removal of the apparatus under para 37(3) of the Electronic Communications Code and served a notice under para 40 of the Code requiring removal. It then applied for an order under para 44 requiring removal.
It was common ground that, while they remained in occupation of the site, the respondents could not acquire new code rights by serving para 20 notices because of the effect of the Court of Appeal’s decisions in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755; [2019] PLSCS 201 and Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd [2021] EWCA Civ 90; [2021] EGLR 14. (The Supreme Court had considered appeals against those decisions and judgment was awaited).
Therefore, they served a notice under para 20 seeking rights to install apparatus on a nearby part of the same stadium site. The respondents applied to stay the reference.
Held: The claimant’s application was granted.
(1) The Code regulated the relationship between those who provided telecommunications services or infrastructure and landowners on whose land telecommunications equipment had to be sited.
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 contained a clear right of removal.
Part 5 of the Code provided at para 30 that code rights continue after the expiry of the agreement by which they were granted, and went on to prescribe the procedure for an operator to get new code rights or to have their existing agreement amended in those circumstances. But Part 5 did not apply to leases granted prior to the coming into force of the Code which were protected by the 1954 Act. Hence the service of the section 25 notice and the anticipation that proceedings would be commenced in the county court if the respondents wanted a new lease.
(2) Under para 37 of the Code, a landowner had a right to remove ECA if a code right entitling an operator to keep the apparatus in, on or over the land had come to an end or had ceased to bind the owner and where the right was granted by a lease to which Part 5 of the Code did not apply. A landowner could 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 light of the agreement that the condition in paragraph 37(3) was met, the issue was whether the reference should be stayed pending either their reaching an agreement in relation to the neighbouring site or the Supreme Court’s decision in Compton Beauchamp, on the basis that that decision might reverse the current law and enable them to serve paragraph 20 notices in relation to the present site. The respondents were anxious to be able to continue to provide a signal and to stay the reference would be consistent with the objectives of the Code.
The respondents’ failure to issue proceedings under the 1954 Act was inadvertent. The site was in operation, providing a phone signal, and his clients wished to continue to do so. If they could not remain on the present site, they would need to move to another one; they had served notices under para 20 of the Code in respect of another part of the stadium, again on the claimant’s land.
(3) The claimant had resisted a stay on the basis that the Code did not give the tribunal a discretion as to whether or not to make an order under paragraph 44. There was a discretion as to the date on which equipment was to be removed but the claimant had a right to have the equipment removed which it was now enforcing. Whilst the claimant’s statement of case sought a removal date in June, the claimant now sought a date six months hence to allow time for the respondents make a reference in relation to the nearby site and have the reference determined by the tribunal (if agreement could not be reached) within the six-month period required by regulation 3(2) of the Electronic Communications and Wireless Telegraphy Regulations 2011.
The respondents not dispute the claimant’s right to require the removal of ECA; their difficulty was that their position made it inevitable that they either kept their equipment on the present site by agreement with the claimant but without the protection of the Code (and in particular without the Code’s limitation of the consideration payable) or they had to go through the expense and upheaval of moving to the new site.
(4) If the tribunal were to stay the reference because of the respondents’ difficulties it would be going beyond what the Code provided. There were no conditions precedent to the making of an order under para 44 beyond the accrual of the right in para 37; there was no list of considerations and no public interest test. The claimant’s suggestion of a date for removal within six months was helpful in the circumstances and was likely to enable the parties to resolve the situation.
Accordingly, the order sought by the claimant would be made and the equipment was to be removed within six months of the order.
Jonathan Wills (instructed by DMH Stallard LLP) appeared for the claimant; Oliver Radley-Gardner QC (instructed by Winckworth Sherwood LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Crawley Borough Council v EE Ltd and another
