In the first case of its kind under the Electronic Communications Code (Code), the Upper Tribunal (UT) in England & Wales has ordered the removal of telecommunications apparatus being given under the Code.
Background
Telecoms operator EE Limited had apparatus installed at a site owned by Crawley Borough Council, under a lease governed by the Landlord and Tenant Act 1954 (LTA 1954).
Prior to lease expiry, in the usual way, the Council initiated a lease renewal process under the LTA 1954.
The parties had, by agreement, extended the time by which court application would be required to initiate lease renewal court proceedings. However, through error, an additional extension was not requested and the lease subsequently came to an end.
Right to require removal
This omission gave rise to the Council's right to require removal of the apparatus pursuant to paragraph 37(3) of the Code. The Council served notice under the Code requiring removal of the apparatus and subsequently applied to the Upper Tribunal for an order for removal.
The operator's right to seek new rights on the site was prevented by the UT decision in CTIL v Compton Beauchamp Estates Ltd and so it served notice under para. 20 of the Code, seeking rights to install apparatus on a nearby part of the site to try to mitigate concerns that a lack of apparatus would cause disruption to coverage in the area.
The Council required removal within six months to allow the parties time to negotiate a new agreement. This time-frame also provided sufficient time to determine any reference pursuant to the para. 20 notice.
The operator requested a stay of the UT proceedings while a decision in Compton Beauchamp was reached or, alternatively, until the resolution of its application under para. 20 had been reached.
Decision
The judge acknowledged the operator's concerns in lack of coverage, but said the matter was of the operator's own making. The UT determined that delaying an order for removal would be for illegitimate reasons. In these circumstances, the UT ordered removal.
If you have telecoms infrastructure requirements across the UK, have any concerns or questions about the Electronic Communications Code or how these decisions may impact you or your business, please do not hesitate to get in touch with our Real Estate Disputes Team or your usual Brodies' contact.
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Senior Solicitor
