Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

Telecoms Code – can Code rights be defeated where a land owner intends to redevelop?

 

This may be relevant to

  • Telecoms operators
  • Private land owners
  • Developers

Need to know points

  • The Code is a framework for operators to obtain rights to install their apparatus on private land
  • The Tribunal will generally look to grant Code rights wherever possible, to achieve the statutory aim of improving connectivity for all.
  • Landowners who genuinely intend to redevelop (irrespective of any Code rights claimed); will still be able to resist Code rights being imposed.

Background

Since the new Electronic Communications Code was introduced, some 18 months ago, the rules of the game for telecoms operators and land owners have seen real change.

In essence, the code is about enabling infrastructure so that the public has access to a choice of high quality telecoms networks.

Land owners might explore ways to defeat Code rights being claim on the basis that it would interfere with redevelopment plans.

Tribunal Decision – EE Limited and Hutchison 3G UK v Meyrick 1968 Combined Trust Of Meyrick Estate Management [2019]

The operators, EE and Hutchinson 3G, had masts on an Estate in Hampshire owned by The Meyrick Trust. They sought to renew their rights under the old Code but negotiations had stalled, so the operators applied to the Tribunal to impose fresh rights under the new Code.

The Trust opposed the application on the basis that it intended to erect their own masts in place of the operator’s existing ones. This was because Code rights cannot be claimed over electronic communications apparatus (including masts). The intended consequence of this would be that after the redevelopment, the Code wouldn’t apply – and the land owner would then be able to freely negotiate new terms outside the constraints of the Code.

The Upper Tribunal adopted the same approach taken by the Supreme Court in the key decision is Franses v Cavendish [2018] relating to an opposed lease renewal based upon redevelopment grounds under the Landlord and Tenant Act 1954. In that case, a new test was established – whether or not the landlord still do the works if the tenant left voluntarily, regardless of having the financial means available to implement planning permission.

Franses was not binding on the Tribunal, but it was held to be relevant to the Code. Accordingly, where a landowner relies on its proposed redevelopment to resist Code rights, the landowner must intend to do the same works if the Code rights were not being claimed.

Conclusion

Landlords should be cautious seeking to implement schemes that seek to ‘get around’ the Code legislation.

There are circumstances when Code rights can be defeated, but be prepared for the proposals and motives to be heavily scrutinised.

Only schemes that are genuinely intended, regardless of any telecoms apparatus, are likely to succeed.

Chris Marsden has experience acting for national telecoms operators as well as private land owners. Please get in touch to discuss any concerns you might have about the impact of Code rights on your land or development scheme.

 


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