Interim rights under the New Telecommunications Code and the need to proceed quickly

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 anyway pending the Tribunal’s 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 the operator and a site provider, on an interim basis.

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 site owner 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 that 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. That period is usually until the determination of the paragraph 20 application to the Tribunal, for permanent rights, that the interim rights support. That gives the landowner some protection. Interim rights do not enjoy the same restrictions on the landowner’s rights to have telecoms apparatus removed, including the requirement of 18 months’ termination notice, that full Code rights benefit from. This reduces the risk, to a site owner, of interim Code rights being granted and means that interim rights being imposed on that owner 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 full Code rights claim within six months, the claimants’ claim here for interim Code 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 under paragraph 26 of the new Code 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 that 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 and includes 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 was capable of compensating the land owner.

As to the second (public interest) 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 claimant 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 pre-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 to the Council 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, or 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 26 need not be an elaborate document if it was 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.