Tribunal refuses to impose full Electronic Communications Code agreement

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The Upper Tribunal[1] has given judgment in Cornerstone Telecommunications Infrastructure Ltd v University of the Arts London [2020] UKUT 0248 (LC), the first case in which the Tribunal has had to consider whether the prejudice caused to an occupier should prevent a full code[2] agreement being imposed, and the first case in which a raft of terms proposed to be included in such an agreement has received detailed consideration by the Tribunal. The application was made against a backdrop of substantial redevelopment of the Elephant and Castle area of London. The redevelopment of a current telecommunications site caused CTIL to seek another site for its apparatus, and the Respondent University accepted that its building was suitable. However, it argued that its current building is to be demolished in a number of years’ time as part of the ongoing redevelopment, and that it had contractual obligations to give vacant possession, linked to the date at which its new building had been completed. It argued that it would suffer prejudice if security of tenure were to be granted to CTIL. The Respondent’s position was that it would agree to a five-year interim code agreement without security of tenure, but the Tribunal could only impose such an agreement if one was sought by CTIL. CTIL declined to pursue an interim agreement, even as a fallback option. The Respondent could not rely on the redevelopment ground at para 21(5) of the Code, as it was not the party proposing to carry out the redevelopment of its current building. It therefore had to succeed under either para 21(2) or 21(3) to avoid the imposition of an agreement. No agreement imposed The Tribunal accepted the Respondent’s case that the prejudice it would suffer prejudice that could not adequately be compensated by money (under para 21(2) of the Code). As to the test at para 21(3) of the Code, at [51] the Tribunal opined that: “The level of prejudice must be very high indeed to outweigh the public benefit, in the light of the public demand for, and dependence upon, the availability of electronic communications.” Despite this “stiff test”, it was held that the prejudice which would be suffered by the Respondent would not be outweighed by the public benefit likely to derive from the making of the Order sought. Accordingly, no agreement would be imposed. The Tribunal agreed with the Respondent that it did have jurisdiction to impose an interim agreement with a term as long as five years but that the Respondent’s willingness to grant one was not something that it had to take into account in this Reference (paras [47] to [49]). Terms Given that no agreement was imposed, the large part of the judgment devoted to terms was expressly stated to be obiter (para [64]), but the Tribunal noted that it was a “matter of general concern in telecommunications disputes” (para [65]). A number of disputed terms were considered at [74] to [255] of the judgment, with some being resolved in favour of the Operator and some in favour of the Respondent landowner. Of particular interest to those in the industry may be the decision on the Operator’s attempt to exclude the safeguards contained at paras 17(2) and 17(3) of the Code in relation to upgrading and sharing. The tribunal described the right of an Operator to upgrade as “immensely important” (para [178]). However, it held that “the starting point is paragraph 17 [of the Code], which was drafted to express policy framed in full knowledge of the importance of sharing and upgrading.” (para [188]). As aesthetic considerations were not an issue, a restriction along the lines of para 17(2) was not appropriate, but in view of the potential benefit to the Respondent, a para 17(3) restriction should be included, namely that sharing and upgrading must not impose any “additional burden” on the Respondent. Jonathan Wills appeared as sole counsel for the successful Respondent. [1] Judge Elizabeth Cooke and A J Trott FRICS. [2] The Electronic Communications Code at Schedule 3A to the Communications Act 2003.

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