The question that arose last year in EE Ltd v Trustees of the Meyrick 1968 Trust [2019] UKUT 164 (LC); [2019] PLSCS 131 was whether the trustees were entitled to the protection of paragraph 21(5) of the Electronic Communications Code (intention to redevelop) and could defeat an operator’s request for Code rights by constructing a mast of its own. The tribunal decided that the trustees had devised the scheme to sidestep the Code and ruled against them (applying the Supreme Court decision in S Franses Ltd v Cavendish Hotel (London) Ltd [2018] UKSC 62). But that was not the end of the litigation.
In EE Ltd v Trustees of the Meyrick 1968 Trust [2020] UKUT 0105 (LC), the parties had to go back to the tribunal because they could not agree the terms of the Code rights to be granted. The tribunal had directed the parties to submit and amend a travelling draft of the Code agreement and to identify any points of disagreement within a month – and just before the end of that period, the operator had added “trunking” to the list of the equipment that was to be installed on the land, as well as a final reference to “associated and ancillary equipment”.
Following a reference to the tribunal, the trustees raised fresh issues, not identified in the travelling draft, seeking to prevent the operator from introducing new equipment to the site later. But the tribunal was unimpressed. It ruled that the trustees’ concerns should have been recorded in the travelling draft, and applied its decision in EE Ltd v London Borough of Islington [2019] UKUT 53 (LC). In that case, a landowner had disregarded instructions for the preparation and amendment of a travelling draft agreement and the tribunal had refused to consider comments on it made by the landowner separately. The trustees had made exactly the same mistake here. They should have amended the travelling draft agreement during the period fixed by the tribunal – and it was not open to the trustees to make new points on it now.
What then of the references to “trunking” and “associated and ancillary equipment”, which the operator had added to the travelling draft agreement? The operator explained that it had added the words because “there will inevitably be some small items/parts of equipment that are not detailed in the equipment specification”. But the trustees had not responded to the amendments and did not engage with the operator on the subject before sending written submissions to the tribunal four months later.
The tribunal deprecated such behaviour and condemned any tactics designed to prolong disputes about the Code. It said that it would have been prepared to consider any comments made by the trustees within a reasonable time. But it was not willing to decide issues raised deliberately at the last minute. This was “vexatious conduct”, which should not be indulged. The provision of electronic communications is in the public interest and disputes about Code rights must be dealt with expeditiously.
The tribunal noted that the equipment specification in the previous lease of the site to the operator’s predecessors in title included the words “associated apparatus”. And the travelling draft agreement referred, elsewhere, to “any support structures associated cabling fixings and ancillary apparatus and equipment”. The trustees had accepted that provision, and had not explained why it objected to “trunking”. Both amendments should stand.
Allyson Colby, property law consultant
