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UK tribunal rejects application for interim rights under Electronic Communications Code

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The Upper Tribunal (Lands Chamber) in England has found that public benefit does not necessarily outweigh prejudice to occupiers of land in one of the first cases to examine interim rights under the Electronic Communications Code.

The tribunal rejected an application by telecoms operators EE and Hutchison 3G for access to land at Windmill Farm in Halifax in order to carry out a survey, under interim rights conferred by paragraph 26 of the Code.

Judge Elizabeth Cooke found that the operators had failed to identify and serve everyone whose interest would be prejudiced by the imposition of Code rights, and she was not able to find a good arguable case that the public benefit outweighed the prejudice to the occupiers of the land.

The operators were looking for a new site for a telecommunications mast due to the termination of the licence agreement for existing space nearby, and had identified a suitable site at Windmill Farm.

The operators’ agent sent four letters to the address for service in the Land Registry, two of which were unreturned, and twice visited the site to knock on the door of farm buildings with no answer received. In February 2020 the operators served a notice under paragraph 26 of the Code and received no response, following which they made an application to the tribunal to confer the rights they were seeking.

However, the judge said she was unable to find the land was unoccupied, because there was a farmhouse and buildings on it. She added that even if she had been able to find the land was unoccupied, the operators had failed to identify and serve everyone whose interest would be prejudiced by the imposition of Code rights because the register of title indicated not only that there were registered proprietors but also that there was a mortgagee and a person with the benefit of a restriction over the land.

The judge said the operators’ application for a broad range of rights would cause “considerable prejudice” if exercised to the full.

“In the absence of any evidence about the respondents or about the land I would not be able to find a good arguable case that the public benefit outweighed the prejudice to the occupiers of the land,” Judge Cooke said.

She said it would not be impossible to impose an agreement conferring interim rights “on a carefully limited and realistic basis” if the occupiers of the land had been identified and had made no response to the operators’ attempts to contact them. However, the judge said it was unlikely for a tribunal to do so unless far more had been done to contact the occupier than had been done in this case.

Property dispute resolution expert Ian Morgan of Pinsent Masons said: “This case is likely to be grist to operators’ mill in the pursuit of their ‘Speed Up Britain’ campaign calling for reform of the new Electronic Communications Code, as it again highlights some of the challenges around balancing the need to streamline processes within the current regime when seeking to deliver vitally important infrastructure at pace and scale against the tribunal’s quite proper concern for the property rights of individuals and for statutory powers to be used in a proportionate manner.

“While this was an extreme case, operators must apply their mind to the scope of the rights they are seeking and be prepared to provide some cogent evidence to assist the tribunal when weighing up the public interest in granting the right sought against prejudice on the other,” Morgan said.

Property dispute resolution expert Ben Buray of Pinsent Masons said the case showed the importance of expert advice for operators in such situations.

“This case is a timely reminder for care to be taken and professional legal advice to be sought if in doubt when serving documents and interpreting title to land, or parties may find, as was the case here, that various formalities have not been complied with,” Buray said.

“In particular, the tribunal highlighted that operators should pay close attention when using ‘precedent’ documents as those which are not appropriately tailored to suit site specific circumstances may risk confusing a ‘reasonable recipient’ of the document. In this case such apparent omissions seem to have contributed to the tribunal’s refusal of the operators’ application – despite the site provider not turning up to the hearing,” Buray said.

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