Electronic Communications code – does a landowner need to act reasonably when allowing access?

The new Electronic Communications Code (“ECC”) came into effect in December 2017 and was widely considered to confer greater rights for telecommunications operators to the detriment of a landowner.

A recent decision in the Upper Tribunal (Lands Chamber) has decided on a dispute between a landowner and its tenant and an operator in Cornerstone Telecommunications Infrastructure Limited v Central Saint Giles General Partner Ltd. The dispute related to the operator (Cornerstone Telecommunications Infrastructure Limited “Cornerstone”) looking to exercise its right to access a property to carry out a survey as to the property’s suitability as a replacement for communications equipment. The landowner (Central Saint Giles General Partner Ltd “Giles”) and the tenant of the property were worried as to the extent of access required by Cornerstone to carry out what was essentially a site inspection and the indemnity being provided by Cornerstone.

The dispute was eventually resolved on the morning of the Tribunal hearing but the parties could not agree as to who should pay the costs that had been incurred in relation to the dispute. The matter of who was responsible for payment of costs was the only substantive matter to be decided by the Upper Tribunal, which had to consider if the parties had acted reasonably in relation to the dispute – the parties had incurred costs exceeding £100,000.

The Deputy Chamber President, Martin Rodger QC, was critical of the way the dispute had been handled by the parties, which included the costs that had been incurred. It was ordered that Cornerstone should pay Giles and its tenant £5,000 each towards their costs, which was far less than the sums incurred by both parties. This order appears to have been made on the basis that whilst the wide rights initially requested by Cornerstone were unreasonable in the circumstances, Giles had also been unreasonable by being obstructive as they made “a number of unnecessary demands for technical information”.

The Tribunal also noted that Giles’ tenant should not be able to recover more than the £5,000 it had ordered to be paid as it had “hitched itself to the arguments of the first respondent (Giles) and must take the consequences”.

As with any type of litigation, this case shows that the conduct of parties to a dispute must be reasonable or else they will be criticised by a Court/Tribunal. It also reinforces that where the parties are being unreasonable) then there will be cost consequences for both parties. The Deputy Chamber President pointed out in the above Cornerstone case, that the “new Code regime is intended to facilitate the provision of telecommunications services without delay and at limited cost” and both landowners and operators must bear this in mind when entering into negotiations.

However, it is interesting to note the initial position taken by the operator in requesting the wide rights under the ECC, as it may provide a pointer as to the negotiating tactics of operators and the rights that they attempt to claim moving forward. Indeed, the Deputy Chamber President’s remarks in his judgment in the above Cornerstone case that “the claimant’s (Cornerstone) wooing of potential site providers has become a little less rough, but it’s technique still has a long way to go” points to the tactics deployed by operators. It is therefore important for landowners to be aware of the rights that an operator has under the ECC and any tenancy granted under the ECC to ensure that the request made by an operator is reasonable (or not as the case may be).

How we can help?

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Paul Westwell at pwestwell@bromleys.co.uk

Martin Blaylock at mblaylock@bromleys.co.uk

Suzanne Thompson at sthompson@bromleys.co.uk

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