Clash of rights of operators and landowner rights to redevelop clarified by Tribunal

In a recent decision, however, the Upper (Lands Chambers) Tribunal confirmed that land owners cannot devise redevelopment plans merely to stop telecoms operators from exercising rights they enjoy under the Electronic Communications Code (ECC).

The ECC governs the relationships between site providers and operators of electronic communications services licensed by Ofcom. It gives operators certain rights to install, inspect and maintain electronic communications apparatus including masts, cables and other equipment on public and private land, even where the operator cannot agree the necessary land access with the site provider.

However, under paragraph 21(5) of the Code, land occupiers can prevent telecoms operators from imposing the rights they enjoy under the Code in circumstances where they intend to redevelop the land at issue and cannot reasonably do so if the Code rights are granted.

The Tribunal considered redevelopment plans outlined by trustees of an estate in Hampshire after mobile network operators (MNOs) EE and Three raised complaint that the trustees were preventing them from operating telecoms masts and cabinets on the property. The trustees argued that their plans to redevelop property on the estate to install their own mast in place of EE's and Three's mast trumped other rights the operators enjoy under the ECC.

According to the trustees, their own plans would deliver improved broadband services for residents on the estate and local businesses. However, the Tribunal considered the timing of the redevelopment plans they had set out and the business case for them. It said the trustees could not rely on the redevelopment plans they had put forward to defeat the rights the operators wished to exercise.

The Tribunal said the 'acid test' concerning the trustees' claims of rights to pursue redevelopment was whether the trustees would intend to carry out their works if the operators did not seek Code rights.

Property dispute experts Alicia Foo, Michael Smith and Ian Morgan of Pinsent Masons, the law firm behind Out-Law, said that the test applied by the Tribunal mirrors that established by the Supreme Court in a December 2018 judgment.

In the Supreme Court case, the court considered redevelopment rights under section 30(1)(f) of the Landlord and Tenant Act 1954, commonly known as 'ground (f)'. Ground (f) provides landlords with a right to refuse a tenant's application to renew its lease at the end of its tenancy on the basis of planned reconstruction or demolition works that it "could not reasonably" perform without obtaining possession of the property.

The Supreme Court said that to test the legitimacy of claims to rights under ground (f) it must be asked whether the landlord intended to carry out the same works if the tenant left the property voluntarily.

Alicia Foo explained that, in its rulings, the Tribunal had recognised that the redevelopment rights provided for under paragraph 21(5) of the ECC are modelled on ground (f) of the 1954 Act. However, she also pointed out that the Tribunal had confirmed that case law developed in the context of the 1954 Act was not binding in the context of the ECC and cases concerning paragraph 21(5) of the Code.

She said, though, that the Tribunal was clear that the ECC "must be looked at with a clean slate and as a fresh start" but that "the principles applicable to the 1954 Act should be adopted where they are relevant".

Ian Morgan said it was clear from the Tribunal's decision that this was one case in which the case law under the 1954 Act was given weight in the context of consideration of ECC redevelopment rights.

The Tribunal concluded: "We have found that the [trustees] are able to bring about their redevelopment plan, through sheer weight of resources. But it is not a viable plan. It involves the loss of mobile coverage for much of the Estate, in exchange for the provision of [fixed wireless access] broadband. The importance of broadband, to modern homes and businesses is not in dispute, but the evidence for the need for new provision on the Estate is far from convincing. Even if there is a need, there is considerable evidence that this is not the only way to meet it, nor indeed the best way. The current scheme is even more seriously uneconomic than was the original scheme."

"We find it wholly implausible that the … trustees with fiduciary duties to their beneficiaries (and also as landowners who claim to be committed to the welfare of their land and their tenants) would waste their resources on it. In reality the redevelopment plans are conceived in order to defeat the claim for Code rights. Even if we are wrong about the [trustees'] intention, their motivation is perfectly clear," it said.

Ian Morgan said: "The Tribunal has made it clear that site providers can expect to have their motive for carrying out a redevelopment closely examined in all but the most straightforward of cases. That said, it will not escape the attention of operators that the Tribunal reaffirmed that it is not the intention of the Code to hold up genuinely held redevelopment plans of site providers."

Michael Smith said: "This decision sends a clear message that the Tribunal will sniff out, then snuff out, attempts by landowners to rely on a purported intention to redevelop where the real intention is simply to devise a scheme to prevent the acquisition of Code rights by operators. This is consistent with the Supreme Court case law.

"Taking a step back, this is therefore another illustration – as the nuances of the new Code continue to be determined – that the new Code was intended by UK parliament to update the law for the digital age and facilitate the rollout of 5G technology across the UK. In that important context, the scope for landowners to restrict the application of the Code, or circumvent it entirely, is likely to be much reduced," Smith said.