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Court of Session makes rare decision on electronic communications code dispute

A rare Inner House of the Court of Session decision in an electronic communications code (Code) dispute highlights a range of issues faced by operator applicants in Scotland, according to one legal expert.

While English courts have heard similar cases involving residential rooftops in London, the dispute between Marks & Spencer and Cornerstone Telecommunications (9 pages / 444KB PDF) is the first that relates to the installation of communications apparatus on a commercial rooftop in Scotland. According to the Code, when parties cannot agree on such installations, a court can impose an agreement if certain conditions involving compensation and public benefit are met.

At the initial hearing before the Lands Tribunal for Scotland, M&S argued that it would suffer open-ended, unknown and unquantifiable prejudice as a result of any agreement granted by the tribunal, meaning that it could not be compensated for adequately. It said that the roof of its building in Princes Street, Edinburgh would not be able to support the proposed communications apparatus. M&S also raised concerns over access and security, telling the tribunal that the route from street level to the rooftop of the five-storey building was very complex.

The level of non-ionised radiation emitted by the proposed communications apparatus meant that a ‘public exclusion zone’ (PEZ) would be required – in which only ‘occupationally exposed workers’ (OEWs) could carry out tasks. But M&S said the proposed PEZ extended to areas in which its personnel, who are not OEWs, would need to be present. It said this would mean that its own staff, not just those of Cornerstone, would be exposed to high levels of non-ionised radiation caused by the apparatus.

The tribunal granted a 10-year agreement to Cornerstone, allowing the company to place unlimited communications apparatus on the rooftop in exchange for annual payments of £3,850 to M&S. The ruling allowed the retailer to claim financial compensation for any loss or damage suffered as a result of the installation of the apparatus or by future upgrades to it.

M&S appealed to the Inner House of the Court of Session, arguing that the tribunal had erred by refusing its objection to the agreement based on the PEZ issue. But the Inner House found that the tribunal had “duly decided” all of the exclusion zone matters earlier in proceedings, and that M&S had introduced the PEZ issue “belatedly”. It added that the tribunal “was fully entitled to decline to entertain the new issue” which likely would have delayed its decision – a possibility that the Inner House described are “undesirable”. It upheld the agreement granted by the tribunal.

Steven Blane of Pinsent Masons said: “This was a rare, but not unheard of, venture by the Inner House into the world of the electronic communications code. While the appeal failed, it serves as a good reminder to operator applicants of the need to have considered and addressed potential issues in advance of the hearing to avoid challenge from the site providers at a late stage.”

“The Inner House also noted the importance of applications being considered quickly by the Lands Tribunal – with a six-month statutory limit in place for a number of application types – which is welcome as it reinforces the need for the legal processes not to delay the provision and expansion of high quality, electronic communications apparatus and networks for the benefit of the public,” Blane added.

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