Relocation of equipment under old and new telecoms 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 (“the Old Code”), applicable to agreements entered into prior to the 28 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 serves notice under either of those provisions of the Old Code the Operator has a 28 day period in which to serve a counter notice. 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 the above paragraphs has been invoked, the service of a counter notice by the Operator has been used as a tactic to protect the Operator's position pending a compromise permitting the Operator to relocate to a mutually satisfactory place. However, there are no decided legal cases in this area.

The New Telecommunications Code (“the New Code”), applicable to agreements entered into on or after the 28 December 2017 contains no “lift and shift” provision, making it important that the landowner’s agreement with the Telecoms Operator contains a “lift and shift” clause.

In the recent case of PG Lewins Limited v Hutchison 3G UK Limited and EE Limited [2018] (unreported) 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 of the building. 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 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 further 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 provided that a Code right was only exercisable in accordance with the terms conferring it.

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. In view of this, the judge held that the “lift and shift” agreement to relocate the telecoms apparatus took precedence over Paragraph 20 of the Old Code whether or not the terms of Paragraph 20 were, or could be, expressly excluded by the telecoms agreement between the parties.

This legal decision applies equally to the New Code because Paragraphs 2(5) and 27(2) of the Old Code are repeated in Paragraphs 12(1) and 100(1) of the New Code.

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.