The tribunal refused to impose an agreement conferring Code rights on an operator in Cornerstone Telecommunications Infrastructure Ltd v University of the Arts London [2020] UKUT 248 (LC). But its observations on the terms of the agreement that it was asked to impose will interest parties to telecommunications disputes – although it cautioned against attempts to derive general principles from its comments, because the terms of an agreement will depend on the site, facts and circumstances.
The tribunal began with the university’s preference for a contractual obligation requiring the operator to compensate it for loss and damage as it arose – suggesting that it was not in either party’s interests to have to make constant calculations and preferring the operator’s offer to pay £9,650 in compensation “up front” on the commencement of the agreement.
The university also asked for a complete list of the apparatus to be installed. But the operator was concerned that this could result in disputes about whether new equipment was a permitted upgrade, or a change that would expose it to the type of financial ransom that the Code was designed to prevent (because it would not be able seek rights to install additional apparatus during the term, thanks to the Court of Appeal’s decision in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755; [2019] PLSCS 201 that there is no jurisdiction to make orders under paragraph 20 of the Code in favour of operators in situ).
The tribunal accepted that there might be a need for specificity in cases concerning open land – indicating, for example, the height or type of mast to be installed. But it was satisfied that there was no such need in this case, because the apparatus would be limited by the strength of the supporting structure and size of the site.
What then of the operator’s request for rights to share and upgrade its equipment, unrestricted by the protections in paragraphs 17(2) and (3) of the Code (no adverse impact on appearance and no additional burdens to be imposed)? The tribunal stressed that no general rule should be derived from its decision. But it agreed that, because the building was due to be demolished, its appearance did not require protection. However, the protection in paragraph 17(3) could conceivably benefit the university.
The tribunal agreed that it would be reasonable for the operator to have to enter into a guarantee simultaneously with any assignment of the agreement, rather than subsequently. It approved the operator’s proposals in relation to exclusion zones to be observed around equipment emitting non-ionising radiation, and the university’s request for a warranty that there was no need for a ground-floor drop zone in relation to any of the operator’s equipment, as well as dealing with the parties’ differences over the indemnity clause included in their draft agreement, approving a limit of indemnity of £35m in respect of claims arising from the same incident.
The tribunal refused to include provisions that were “pedantic and unrealistic” (such as a requirement for a schedule of dilapidations when the building was to be redeveloped), deprecated unnecessary duplication, and criticised micro-management (requirements that certain headings should be specified on e-mails). And it condemned the intransigence and level of hostility displayed by the parties, disapproved of the disproportionate amount of time and energy spent on disputes about disclosure, and urged parties in future cases to confine themselves to one witness of fact when disputing terms to be included in telecommunications agreements.
Allyson Colby, property law consultant
