A telecommunications operator (Operator) had been served with a statutory notice pursuant to the Electronic Communications Code (Code) by a local authority landowner. The landowner was seeking clarification on whether the Operator held any valid Code rights permitting the continued presence of broadband cabling (Apparatus) throughout the landowner’s estate in a densely populated London Borough, which was under redevelopment to social housing (Estate).

The Operator responded to the Code notice but failed to disclose all details and documentation evidencing its Code rights relating to the Apparatus.

The presence of the Apparatus brought the redevelopment to a standstill, resulting in the contractor being in breach of its contract of works with the landowner and exposed to a significant claim for damages for each day the redevelopment was delayed.

The Operator was not opposed to re-directing its Apparatus but claimed £1M+ from the landowner’s contractor responsible for the redevelopment to do so. 

Key issues in the case included:

  • 1. Deficient response by the operator

    The Operator did not provide the requested documentation by the three-month statutory deadline.

    This triggered Code rights entitling the landowner to enforce removal of the Apparatus from the Estate.

  • 2. Development delays and costs exposure

    The Operator’s inability to produce document evidencing its apparatus meant that under the Code the Operator would potentially be liable for all costs incurred in connection with removal of the Apparatus. Should the Operator fail to remove its Apparatus within 28 days of any subsequent Code notice issued by the landowner, the landowner could apply to the Tribunal for an order to compel removal.

    Further, if an order would be granted by the Tribunal, the Operator could also have been liable to pay compensation to the landowner for any loss or damage arising from the continued presence of the Apparatus on the Estate. The Operator’s lack of a paper audit trail of its kit was a critical business risk.

  • 3. Barrier to granting new code rights

    One of the most significant legal hurdles for the Operator was the landowner’s genuine, documented intention to redevelop the Estate — evidenced by active construction works and contractual obligations already in place.

    Under the Code, a landowner's firm intention to redevelop can justify the refusal of new Code rights. This meant that any application by the Operator to secure continued rights or resist removal would likely have been dismissed by the Tribunal.

From uncertainty to action: our legal insight

Through our specialist expertise in the Electronic Communications Code, we assisted our client in swiftly resolving uncertainty surrounding the installation status of fibre broadband cabling on the Estate. Our involvement enabled our client to proceed with the development without delay, avoiding a potentially protracted legal dispute and mitigating the risk of unnecessary costs.

This provision of the Code offers landowners significant leverage in managing in-situ apparatus. Telecoms operators must remain alert to the associated risks, particularly regarding cost exposure and the potential impact on asset and portfolio valuation.

Removing barriers to progress

Having failed to articulate any legal basis to remain on the Estate, the landowner treated the Operator’s omissions as an admission to enforce removal of the Apparatus and warned the Operator of impending Tribunal action. The Operator was left with no alternative than to concede its position and seek permission to redirect the Apparatus at its own expense.

Contributors

Lucie Barnes

Partner

Catherine Cross

Associate

Manus Quigg

Partner

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