How far must operators go to contact occupiers of land?

Rights under the Electronic Communications Code can be created by agreement between an operator and the occupier of land, or by court order. So what is the position if land appears to be unoccupied? Paragraph 105(5) applies to land that is unoccupied and is not a street. In such cases, paragraph 105(6) states that references to an “occupier” are to the person who exercises powers of management or control over the land or, if there is no such person, to every person whose interest in the land would be prejudicially affected by the exercise of a Code right in relation to the land. In EE Ltd v Cooper [2020] UKUT 0214 (LC), the operator sought interim rights to enter land in Halifax in order to carry out a survey to determine whether it was suitable for the installation of telecommunications equipment – and had written to the registered proprietors at an address in Barnsley, which was their address for service for the purposes of communications from the Land Registry. The operator’s first two letters, asking for access to survey the land, were returned undelivered and it did not receive any response to two further letters sent to the same address. The operator then served notices under paragraph 26 of the Code, together with a draft agreement for vehicular and pedestrian access to the land, on an unlimited number of occasions within a three-month period, with such materials, machinery tools, plant and equipment as it considered reasonably necessary – and obtained receipts signed by “Charles”. But it did not receive any response to its proposals and applied to the tribunal claiming that the case fell within paragraph 105(6) of the Code because the land was unoccupied. The tribunal asked what evidence there was to confirm this – and the operator explained that there was a dilapidated farmhouse and stables on the land and that its agent had knocked on the door of the farmhouse in September and November 2019, without receiving an answer. But the judge was unimpressed – and did not feel able to decide that the land was unoccupied on the basis of two attempts to knock on the door, one of which had occurred nearly a year previously. The judge did not consider that the term “vacant land” used in the Notice of Reference was apt to describe land on which a house stands, unless perhaps it is derelict, which was not the case here. Also, even if she had been able to find that the land was unoccupied, the judge stated that she would not have been satisfied that the operator had identified and served everyone whose interest would be prejudiced by the imposition of Code rights, as required by paragraph 105(6) of the Code, because the registers of title indicated that there was also a mortgagee and a person with the benefit of a restriction over the land. The Code requires the tribunal to balance prejudice with public benefit – and, because there was insufficient information about the registered proprietors, the judge also felt unable to hold that there was a good arguable case that the public benefit outweighed the prejudice to the occupiers of the land. Far more should have been done to contact the occupier than was done in this case, where there had not even been an attempt to knock on the registered proprietors’ door. So, for all these reasons, the application for interim rights was refused.   Allyson Colby, property law consultant