Telecommunications Code Disputes. How much is it worth to you? Costs in the Upper Tribunal (Lands Chamber)

Weightmans LLP recently represented Clarion Housing Association Limited

Weightmans recently represented Clarion Housing Association Limited in the matter of Cornerstone Telecommunications Limited and (1) Central St Giles General Partner Limited (2) Clarion Housing Association Limited which was an application brought by Cornerstone Telecommunications Infrastructure Limited (CTIL) pursuant to the Electronic Communications Code (the Code) as set out at Schedule 3A of the Communications Act 2003.

The facts of the case are, on the face of it, fairly simple. The dispute centred on Matilda Apartments in London which are owned by Central St Giles General Partner Limited (St Giles) part of which is leased to Clarion Housing Association Limited (Clarion). CTIL wanted access to Matilda Apartments to assess their potential suitability for the siting of electronic communications apparatus.

However, as is often the case in litigation, matters become more complicated by that which is not said, as often as that which is said. The parties reached an impasse because CTIL sought the full panoply of rights which an operator may apply for pursuant to the Code whereas St Giles and Clarion required those rights of access to be limited to that which was necessary for CTIL to assess the suitability (or otherwise) of Matilda Apartments.

Absent an adjournment (which Clarion was open to agreeing) the matter was listed to be heard before Deputy Chamber President Martin Rodger QC on 24 May 2019. Shortly before the hearing the parties came to terms insofar as the question of access was concerned. This left only the matter of costs to be determined.

Collectively the costs sought exceeded £100,000 (of which Clarion’s were just over £7,000). The Tribunal ultimately found against CTIL for having “refused steadfastly to place any limit on the rights it required”. However the Tribunal was critical of the technical arguments raised in opposition to the application, and considered that there was no realistically genuine fear of abuse of the Code rights sought, as they were only sought for a period of 28 days. As such, costs of £5,000 were awarded to each of St Giles and Clarion.

Ultimately the decision is a positive one for those with an interest in land which may be identified as potentially suitable for use by Code Operators. The Tribunal emphasised that Operators “cannot simply demand unquestioning cooperation from property owners”. Any landowners faced with applications of this kind should not be afraid to question the Operator’s requirements and, where appropriate, put up a level of resistance. However, they should also be mindful of the costs involved and the fact that they may ultimately need to justify their reasoning to the Tribunal, failing which, they may be penalised on costs.

If you have any questions or would like to know more about our legal update, please contact Matthew Lake, Principal Associate on 0121 632 6100 or email matthew.lake@weightmans.com

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