Under the Electronic Communications Code, an operator is entitled to acquire rights over land to install a telecoms mast or equipment. However, a Code agreement will not be imposed on a landowner where (amongst other things) that landowner intends to redevelop all or part of the land, or neighbouring land, and could not reasonably do so if an agreement is imposed.

The tribunals and courts have sought to determine what is the standard of intention required by the party seeking to rely on a redevelopment argument, with a more recent decision challenging what has gone before.

Redevelopment in the context of the Code

In 2019, the Upper Tribunal considered this issue in EE and Hutchison 3G v Meyrick. The redevelopment proposed was a proposal by the owners to put up their own masts, in place of the operator masts. To meet the redevelopment test, the owners had to establish that they had both a reasonable prospect of carrying out their redevelopment and a firm, settled and unconditional intention to do so.

Whilst the tribunal found the owners had a reasonable prospect of bringing their plans to fruition, in reality, the redevelopment plans were conceived in order to defeat the operators' claim for Code rights and so were ultimately unsuccessful. For more details on this case, please see our previous blog here.

CTIL v University of the Arts London in 2020 found that a break provision in a sale and leaseback agreement, which required vacant possession free from third party rights and telecommunications apparatus (and subsequent £3million per annum rent liability if it failed to comply), was too tall an order for the university to be expected to absorb so, the public benefit test under the Code had not been met and an agreement was not imposed. For more information on this case please see our previous blog here.

What about decisions on 'intention to redevelop' since?

In England & Wales in the context of a 1954 Act lease renewal, it is a well-established test for the inclusion of a redevelopment break clause in a lease that there need only be a "a real possibility (as opposed to a probability) that the premises in question will be required for reconstruction during the continuance of the proposed new tenancy".

This test was put to the test earlier this year in B&M Retail Limited v HSBC Bank Pension Trust where the court held that the policy of statute was not to allow the rights of a tenant to stand in the way of development and affirmed the view that there need only to be a real possibility (not a probability) that, in this particular context, planning permission would be obtained.

Curiously (and again in the context of a 1954 Act lease renewal), in the very recent case of BMW (UK) Limited v K Group Holdings Limited the challenge the court said was before it, was whether the intention to redevelop was more than mere thought, which had matured into a "genuine and workable decision".

An apparent divergence from the test, the proposed intended statutory policy identified in B&M v HSBC and different to the finding in CTIL v Uni of the Arts.

If you are an operator, site provider or landowner with concerns or queries about the Code or, how these issues may impact you or your business, please do not hesitate to get in touch with our Telecoms team or your usual Brodies' contact.

Contributors

Lucie Barnes

Partner

Leonie Hall

Legal Director