In telecoms siting agreements, a right to “Lift and Shift” is a landowner’s right to make a telecoms operator relocate its plant and equipment.
The Old Telecommunications Code, applicable to agreements entered into prior to the 28th December 2017, contains its own Lift and Shift Clauses in Paragraphs 20 and Paragraph 21. These apply whether or not the Landowner’s agreement with the Operator contains a Lift and Shift Clause and whether or not that agreement has expired.
If a Landowner served notice under either of those provisions of the Old Code the Operator has a 28 day period in which to serve a counter notice and, if a valid counter notice is served by the Operator, the apparatus can only be removed if a court order is obtained by the Landowner.
Where either of these paragraphs have been invoked, the service of a counter notice by the Operator has been a tactic to protect the Operator’s position pending a compromise permitting the Operator to relocate to a mutually satisfactory place and there are no decided cases in this area.
The new Telecommunications Code, applicable to agreements entered into on or after the 28th December 2017 contains no Lift and Shift provision so it is important that the Landowner’s agreement with the Operator contains a Lift and Shift Clause.
In the recent case of PG Lewins Limited v Hutchison 3G UK Limited and EE Limited (2018) the Operators had agreed, under the Old Code, to relocate their apparatus to a temporary scaffold and then (when required) to return the equipment to the roof. However, the Operators did not relocate their telecommunications equipment back to the roof until after the Landowner had applied for an injunction against them.
The Judge ruled that the old telecoms code did not afford the Operators any defence to the Landowner’s claim that they had breached their obligations under the “Lift and Shift” clause.
The Judge said that the Landowner’s agreement with the Operators defined the scope of the rights granted to the Operators under the Old Code.
In particular Paragraph 2(5) of the Old Code said a Code right was only exercisable in accordance with the terms conferring it.
Also Paragraph 27(2) of the Old Code said the provisions of the Old Code would be without prejudice to any rights or liabilities arising under any agreements the Operator was a party to. So, the judge said that the agreement to relocate the telecoms apparatus took precedence over Paragraph 20 whether or not the terms of Paragraph 20 were or could be expressly excluded by the telecoms agreement between the parties.
The reasoning behind the decision carries over into the New Telecoms Code because Paragraph 27(2) of the Old Code has its counterpart in Paragraph 100(1) of the New Code and the New Code replicates Paragraph 2(5) of the Old Code with its identical Paragraph 12(1).
Therefore, the terms of the telecoms agreement which creates the Code rights will remain predominant on the issue of Lift and Shift and Operators must be vigilant to comply with them.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.