Referrals under the Electronic Communications Code (Code) are dealt with under the jurisdiction of the First Tier Tribunal (FTT) and Upper Tribunal (UT) in England & Wales, since the first referrals were made in December 2018. Historically, cases had been triaged and originally paragraph 20 references had been retained in the UT, because of the statutory time limit for their determination. Routine cases were transferred to the FTT.

Factors which had been taken into account were (1) whether a reference raised a significant issue which has not been determined before; (2) whether a reference was of a type which, though not necessarily difficult, the UT had not yet given a decision on e.g. incorporation of a redevelopment break-clause or opposition to renewal on redevelopment grounds; (3) rare cases where, for one reason or another, it was too late to make a transfer decision while remaining confident that the statutory time limit could be met.

Overall, 785 Code references had been received by the UT (up to 13 October 2023). In 2021, there were 106 referrals, in 2022 there were 171 and in 2023 there were 222. By March 2024, referrals are expected to exceed 300 owing to legislative changes such as introduction of the Product Security and Telecommunications Infrastructure Act 2022. For more information on this, please visit our blog here.

Concerns had been raised about the new FTT jurisdiction, in part because unlike the UT, the FTT did not publish its decisions. This has now be remedied following a campaign and the FTT will be publishing Code decisions, which can be found here.

Only 2 have so far been published by the FTT. But, we expect more to come through in due course as the FTT gets through a backlog.

From 6 April 2024, the FTT will be the primary tribunal for hearing Code cases when the Electronic Communications Code (Jurisdiction) (Amendment) Regulations 2023 (SI 2023/1220) come into force.

If you are an operator or infrastructure provider dealing with telecommunications issues or, you have any concerns or questions about the impact these issues may have on you or your business, please do not hesitate to get in touch with our Real Estate Disputes team or your usual Brodies' contact.

Contributors

Lucie Barnes

Partner

William Payne

Senior Associate

Catherine Cross

Senior Solicitor