Tag Archives: Telecoms

Principles applicable to Interim Rights under New Telecoms Code

One important feature of the new Electronic Communications Code (“the Code”) is the obligation it places on the Tribunal to resolve dispute without delay.

Regulation 3(2) of the Electronic Communications and Wireless Telegraphy Regulations 2011, referred to in paragraph 97 of the Code, requires the Tribunal to determine applications for the grant of rights to install electronic communication networks apparatus within 6 months of receiving the application.

That obligation is imposed in the public interest, rather than for the convenience of operators, and it is not one which the parties are free to dispense with.

Nevertheless the view taken by the Tribunal has been that the obligation arises in the case of applications concerning new sites, rather than sites over which rights already exist which an operator seeks to renew and which will continue pending the determination of the application.

Paragraph 26 of the Code provides that an operator may apply to the Tribunal for an order imposing an agreement conferring Code rights on an interim basis on the operator and a site provider.

Interim rights under the new Code are available under a summary procedure. Extensive disclosure, is not required nor, usually, would the evidence be subject to cross-examination. An application for interim rights should be decided on the basis of paper submissions to the Tribunal. However unfairness must not be caused to a respondent and the Tribunal will not generally assume things in favour of an operator if the operator could have provided evidence.

On an application for interim rights an operator does not have to establish that the pre- conditions under paragraph 21 are met on the balance of probability, but must establish a good arguable case. That case need not be free of all doubt or uncertainty at this stage but it must have a certain amount of strength and persuasiveness about it.

Interim rights will last only until the expiry of the period for which they are granted, usually until the determination of the paragraph 20 application they support. That gives the landowner some protection. Interim rights do not enjoy the same restrictions on the landowner’s right to have apparatus removed, including the requirement of 18 months’ termination notice, that full Code rights benefit from. This reduces interim rights’ risk to a site owner and mean that any interim rights being opposed is not as serious or lasting as the imposition of full Code rights.

In the Upper Tribunal (Lands Chamber) Case of EE Limited and Hutchison 3G UK Ltd –v- Islington Borough Council (2018) the claimant had an existing telecommunications site on the roof of Leroy House only a short distance from the Council’s Threadgold House. The owners of Leroy House required the claimants to remove their equipment from it for demolition, and the claimants had identified Threadgold House as an appropriate alternative site to which they wished to relocate.

Since the Tribunal was obliged to reach a final decision on a claim within six months, the claimants’ claim here for interim rights had to be determined speedily and significantly within the period of 6 months applicable to applications for full code rights.

The Tribunal has a discretion but that discretion has to be exercised judicially.

If a party has shown itself willing in principle to accept the installation of equipment on its land that may be relevant to the exercise of the paragraph 26 discretion.

The Tribunal will have greater confidence in imposing an agreement where it is apparent that the rights sought are not objectionable to the site owner in principle, subject to appropriate financial terms. The way that the parties have behaved towards each other in negotiations may be relevant. This is something reluctant landowners need to watch.

Here negotiations with Islington had achieved a substantial level of agreement before the new Code came into force on 28 December 2017 but they were never completed. The issue separating the parties concerned financial terms.

The test for making an order is in paragraph 21 included whether the prejudice caused to the site owner and anyone claiming under it by the making of the order is capable of being adequately compensated by money.

The fact that the parties were negotiating for the imposition of rights in return for an appropriate payment, and fell out only over the amount of that payment seemed to the Tribunal to indicate that money is capable of compensating the land owner.

As to the second (public interest) pre-condition in paragraph 20 of the new Code, if that corner of Islington lost the mobile phone coverage provided by the claimants, for no matter how short the inconvenience, it was likely to be regarded by the public as an unacceptable break in a service they expected to be available to them at all times. It would be damaging to the public interest identified in paragraph 21. So the Tribunal accepted that there was a risk.

The Tribunal should not approach an application for interim rights on the basis that a Code operator should be required to extract the maximum delaying tactics for the rights it may enjoy elsewhere. The operators could not be expected to forego the sensible commercial approach that they begin work at Threadgold House, complete it in an orderly manner and then decommission at Leroy House all within a timescale agreed with the landlord of Leroy House.

The Tribunal was therefore satisfied that the claimants had made out a good arguable case that the paragraph 21 conditions were met, subject to one additional point.

If it transpired that planning permission was not obtained for the re-development of Leroy House, so that the removal of the claimant’s equipment was not required, the balance of public interest against private prejudice would tip the other way. The claimants would then be able to remain in their current location and the public would not be disadvantaged. So it seemed appropriate here that an order for the imposition of interim rights should be conditional on planning permission being granted to the owners of Leroy House to enable them to carry out the works of demolition and reconstruction which they proposed.

While the position in relation to planning permission was uncertain there may be some interim rights, such as to undertake a non-intrusive survey, which might further the design of the claimants’ intended works and which it would be sensible to allow straightaway. There should be no need for intrusive works, and no requirement for scaffolding, equipment, cranes, noisy or inconvenient works on the roof of Threadgold House until it was known whether the planning permission was available for the re-development of Leroy House.

The claimants’ proposed agreement under paragraph 20 need not be an elaborate document if it is only going to be of 3 or 4 months duration. It ought to impose no obligations on the site owner other than an obligation not to derogate from the rights which had been granted. It should require no other covenants or undertakings from the site owner. It should put the full risk of the operation which the operators wished to undertake on the operators and none of the risk on the site provider.

As to the consideration payable to the Council, the Tribunal directed that the claimants make payments on account of the final consideration at the £2,551.00 per annum they had suggested. The Tribunal would determine the appropriate consideration when it determined the paragraph 20 application for full Code rights. If the Tribunal fixed a higher figure it would be payable retrospectively by the operators.

This blog is posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Does the new Telecoms Code permit preliminary site suitability surveys?

Does the new Telecoms Code give the tribunal power to impose an agreement allowing access to a building to investigate it’s suitability for the installation of electronic communications apparatus?

The procedure in paragraph 26 of the new code enables interim rights to be obtained without the operator having to prove that the pre-conditions in paragraph 21, which apply to the imposition of a full Code agreement, are met. That is because under paragraph 26(3)(b) the operator need only satisfy the tribunal that it has “a good arguable case” that qualifying tests in paragraph 21 are met.

The recent Upper Tribunal (Lands Chamber) case of Cornerstone Telecommunications Infrastructure Limited – v- The University of London (2018) was the first decision given under the new code.

The claimant (CTIL) wanted have access to the roof of the University’s building to carry out a survey and other non-intrusive investigations to establish whether the site was as suitable as its desk top assessments suggested.

Access was likely to be required on three or four occasions in one twenty- eight day period for visits of about 2 hours by members of the claimant’s staff.

The rights sought were not temporary rights, but were interim Code rights. Here code rights may be imposed by the tribunal on an interim basis for a specified period or until the occurrence of a specified event (paragraph 26(2)).

The tribunal concluded that the right conferred by paragraph 3(a) to install apparatus on over or under land must include a right to enter on the land and to carry out each step required to achieve the permitted installation.

The fact that the code makes no mention of “entry” or of any specific works (such as excavation or tunnelling) did not mean that no right of entry has been conferred or that works were not envisaged as being an essential part of the process of installation permitted by paragraph 3 (a).
The fact that paragraph 3 (f) included a specific right to enter land to inspect, maintain etc., apparatus already on that land did not mean that paragraph 3 (a) precluded a right of entry to install and so must the taking of other necessary steps be included, since otherwise the grant of the right would be illusory.

The right to “install” was intended to permit an operation involving a series of distinct steps and the single word was sufficient to connote, as a component of the right, each of those steps. No electronic communications apparatus could be installed without some preparatory work, including a “multi skilled visit”, being undertaken.

The permitted preparatory work included site investigations and surveys, including those required to design works.

So the right to undertake preliminary surveys or “MSVs” is a Code right within paragraph 3(a) or, failing that, paragraph 3(d).

It cannot have been intended that an operator must first negotiate outside the scope of the Code to acquire a right of entry to undertake essential preliminary surveys before it could insist on the acquisition of Code rights.

Such an interpretation would enable landowners to hold operators to ransom negating operator’s ability to acquire code rights for payments assessed on a favourable “no network” basis which was contrary to the principles on which the new Code has been designed.

The University also objected that the claimant’s application for interim rights of survey and inspection was unaccompanied by any request for rights on permanent terms.

The tribunal said an operator can apply for interim code rights without a request for the same (or any) permanent rights being made concurrently. Such an application would be anyway pointless till the building’s suitability was confirmed by the inspections.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Important Case on Relocation for Telecoms Agreements under Old and New Codes

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.

New Electronic Communications Code: Site Providers who are “Operators”.

The Electronic Communications Code gives licensed telecoms operators statutory rights to have equipment on private land. The Digital Economy Act 2017 contained a new Code with sweeping changes in favour of operators.

Main drawbacks of the new code for site providers:

Site Sharing: regardless of the terms of any written agreement, telecoms operators can share sites without the landowner’s consent. Landowners can no longer insist on sharing the income from operators sharing sites.

Site Dealings: regardless of the terms of any written agreement, telecoms operators can transfer their leases without landowners’ consent.

Upgrades: so long as any adverse visual impact is at most minimal and no extra burden is placed on the landowner, telecoms operators may upgrade equipment without landowners’ permission.

Valuations: Telecoms sites had been valued on an open market basis. Under the New Code they will be valued on a ‘no scheme’ basis where the existence of telecoms leases and the telecom operator’s rights will be disregarded. So compulsory purchase principles will be applied merely to value the land lost to the mast and equipment cabins and any adverse impact. This will greatly reduce landowners’ income from operators.

Terminating Code rights: Here there has been a welcome clarification of grounds. But landowners must serve a notice specifying the date when the agreement is to cease. That date must be at least 18 months from the date of notice and the contractual term of the lease must have expired by the end of that 18 month period. The telecoms operator then has three months to serve a counter-notice on the landowner and a further three months to apply to court. Even when the court has terminated the agreement the landowner then has to reapply to court to get the equipment removed unless the telecoms operator removes it voluntarily in the meantime.

Retrospectivity: The New Code’s sharing, assignment and upgrading rights will not apply to leases granted before it came into force on 28th December 2017.

Not unnaturally site providers are keen to avoid the New Code applying if they can.

It was the policy of the New Code that the New Code was not to be asserted by Telecoms Operators against other Telecoms Operators. Such arrangements were to be regulated by OFCOM. The easiest way to have achieved this would have been for the New Code to exclude itself giving Operators rights against other Operators or applying to any other Operator’s electronic communications apparatus.

Instead, the New Code draftsmen modified the New Code’s definition of “Land” over which all code powers are exercised “to expressly exclude “electronic communications apparatus”.  

Save for that exclusion “land” includes anything and everything annexed to it.

The New Code defines “electronic communications apparatus” to mean:

“(a) apparatus designed or adapted for use in connection with the provision of an electronic communications network, … and

(d) other structures or things designed or adapted for use in connection with the provision of an electronic communications network.”

This distinction between “apparatus” and “structures or things” is significant.

As a matter of law a “structure” is a composite thing put or built together from a number of different things.

All “buildings” are “structures”, but not all structures are “buildings.”

A motorway embankment may be a structure but not a building.

This has created artificial distinctions.

Antennae may be attached to “structures”, which are not obviously electronic communications apparatus such as grain silos, overground gas mains, bridges and aqueducts.

None of those structures will have been “designed” for “use in connection with the provision of an electronic communications network”, but they may or may not have been made suitable or modified (i.e. “adapted”) for such use.

I now deal with the strange results which would arise from pursuing the concept of “adaption” to it’s semantic conclusion – illogical though the outcomes may appear.

The act of attaching an antenna to a “structure” may or may not make the structure “adapted” for “use in connection with the provision of an electronic communications network” but strengthening that structure to take the weight and windloading of the antenna would make the structure “adapted”.

A single cable may sit in established channels or bespoke cable carrying trays may added to support the cable. Where the cable sits in an existing channel, the channel would be “land” and so Code rights would apply. If the cable sits within a tray added to the channel, the channel would have been adapted and so would be itself electronic communications apparatus and Code rights would not apply.

Similarly attaching brackets to a motorway embankment would be “adapting a structure for use in connection with the provision of an electronic communications network” so any electronic communication apparatus attached to those brackets would be attached to “electronic communications apparatus”, not land, and so the New Code would not apply to them.

However the position would be different if the brackets were attached, not to a motorway embankment, but instead to the parapet walls of an office roof. This is because Paragraph 5(3) of the New Code says that a “structure” only includes a “building” if the sole purpose of that building is to enclose other electronic communications apparatus.

This introduces fresh uncertainty. A water tower or grain silo may or not be a “building” as well as a “structure”.

Worst still the New Code only excludes new leases from security of tenure under the Landlord and Tenant Act 1954 where their “primary purpose” is the grant of Code Rights. If it is uncertain whether the New Code applies how can such be the “primary purpose”? Where there is doubt it would be as well to continue old lease contracting out procedures.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases