Operator v Landowner: The Electronic Communications Code returns to Scotland's Lands Tribunal

The relatively new, as far as the law goes, Electronic Communications Code (ECC) which came into force at the end of 2017, is a powerful instrument for telecommunication providers. Under the ECC, operators can acquire "code rights": the right to access land for the purpose of installing and maintaining apparatus.

Notices underpin the mechanics of the legislation. Operators can acquire code rights by serving a notice on the landowner; similarly, landowners can serve notices on operators enforcing removal of the apparatus, in certain circumstances. Failing agreement in either case, the parties can apply to the Lands Tribunal in Scotland for a decision. This is what happened in British Telecommunications plc v Peter Morrison.

What was the case about?

The parties had a long and difficult history. Mr Morrison had contacted BT as early as 2017 (pre-2017 ECC code) to remove apparatus which he claimed (and BT later admitted) had been installed on his land in the Isle of Lewis without his consent, together with compensation.

In 2018, Mr Morrison issued two notices to BT seeking removal of the apparatus under the 2017 ECC. However, he refused to grant access to BT until the issue of compensation was dealt with. BT served a notice for "interim rights" (in this case meaning a one-off right) to access the land and remove the apparatus. Having failed to reach an agreement with Mr Morrison, BT applied to the Lands Tribunal for a decision.

The decision

Mr Morrison argued that granting BT the order to remove the apparatus would deprive him of his right to retain the apparatus and claim for damages under common law. Therefore, the public interest in granting the order to remove the apparatus, did not outweigh the prejudice he would suffer as a result of his loss.

On the other hand, BT argued firstly, that by removing the apparatus and diverting the broadband to cabinets on a different area of land, they would be able to serve up to 72 customers on the island (compared to their existing 28). Therefore, the public interest outweighed any prejudice to Mr Morrison. Secondly, the prejudice (if any) suffered by Mr Morrison in granting the interim rights was capable of being adequately compensated by money. Accordingly, BT met the two-prong test for code rights under the ECC.

The Tribunal agreed with BT and granted interim code rights to remove the apparatus. The Tribunal was not convinced that Mr Morrison had any right to retain the apparatus or claim for damages under common law. In any event, any loss endured by him as a result could be alleviated by financial compensation in terms of the ECC.

What can operators and landowners take from this case?

Communication, pardon the pun, is key between parties. The Lands Tribunal was sympathetic with Mr Morrison's attempts to contact BT as early as 2017 with little engagement from the latter, suggesting that the "failure in negotiations between the parties has led to a position which is as unfortunate as it is bizarre".

As much as the ECC is favourable to network providers, they nevertheless rely on a good working relationship with landowners to ensure that their operations are not contested. Consistent, timeous and open dialogue between the parties should therefore be encouraged, and disputes ironed out at an early stage.