Tribunal warns against delaying Electronic Communications Code agreements

In July last year the Tribunal rejected an attempt of the landowner trustees of the estate to resist the imposition of Code rights in favour of mobile operators EE and Hutchison 3G to maintain and operate a telecoms mast on an estate in Hampshire. In round two, the Tribunal directed the operators and the trustees of the estate to exchange copies of the draft Code agreement with a late November 2019 deadline. The trial was set for 24 and 25 March 2020.

The trustees failed to respond to the operators’ draft agreement and ignored repeated chasers from the operator, leaving just two minor amendments in dispute. Months later, in written submissions to the Tribunal, the trustees raised two new issues which they had not previously brought up in comments to the draft.

In its judgment (9 page / 360KB PDF), the Tribunal said that by failing to respond to the final amendments to the draft until making written submissions in March, the trustees had “sought to delay the resolution of the reference and to hijack the final determination by raising issues that should have been raised months ago”.

The Tribunal said it was not willing to decide issues raised “deliberately at the last minute”, and instead ruled only on two small amendments which the operators had included in their last version of the draft lease.

Property disputes expert Pierre Smith of Pinsent Masons, the law firm behind Out-Law, said the Tribunal had not lost its teeth since it delivered its first warning to non-complying parties in a February 2019 judgment, when a landowner was debarred from commenting on terms after failing to comply with directions.

“The message remains clear – don’t expect indulgence if you flout the rules,” Smith said.

Smith said parties to Code rights agreements should be particularly mindful of this while the resources of the courts are stretched due to the Covid-19 pandemic.

“At a time when the integrity of electronic communications networks has been described in government guidance as being of ‘paramount importance to sustain the increasing demands being placed on them’, it is unfortunate that this case got to where it did” Smith said.

“The minor amendments that had to be ultimately determined by the Upper Tribunal were described as ‘perfectly sensible’ and the reason for the landowner not accepting them months earlier was considered a ‘mystery’. The Tribunal’s time and judicial resources could have been better spent elsewhere and the future of another piece of valuable communications infrastructure could have been secured much sooner, at a lower cost to all,” Smith said.

“It is hoped that this judgment acts as a timely reminder that delay tactics will not be tolerated, they are slowing down the roll-out of new agreements between landowners and operators, thus undermining the overarching intention of the Electronic Communications Code.” Smith said.

Property disputes and telecommunications expert Alicia Foo said: “The judgment is  consistent with the  guidance issued by the Tribunal on 24 March 2020 on how the parties are to conduct themselves in the Upper Tribunal Lands Chamber  during this time of Covid-19, which makes clear the Tribunal expects a high level of cooperation between the parties and not the  game playing or last minute litigation tactics employed here."

"It is notable one of the last minute ‘additional issues’ brought up by the trustees of the estate related to the upgrading of electronic communications equipment. Such upgrading is a key drafting battleground between operators and landowners; due to the delay, the Tribunal declined to allow this to be argued so the question will remain outstanding for now and left for another Tribunal decision," she said.

The ECC governs the relationships between site providers and operators of electronic communications services licensed by Ofcom. It gives operators certain rights to install, inspect and maintain electronic communications apparatus including masts, cables and other equipment on public and private land, even where the operator cannot agree the necessary land access with the site provider.