The tribunal considers sharing and upgrading
Cases on the Electronics Communications Code are arriving thick and fast. Most recently, the litigation in Cornerstone Telecommunications Infrastructure Ltd v London & Quadrant Housing Trust [2020] UKUT 0282 (LC) explored the terms that the tribunal can impose in relation to sharing and upgrading.
The parties had agreed that the tribunal should impose an agreement giving the operator the right to install equipment on part of the roof of the landowner’s building. But the landowner wanted to impose an “equipment cap” – a common feature of agreements under the previous Code – limiting the operator’s right to install new apparatus, citing concerns about its responsibilities under the Building Safety Bill, which was introduced into parliament following the Grenfell Tower fire in 2017. But the tribunal preferred the thinking in Cornerstone Telecommunications Infrastructure Ltd v University of the Arts London [2020] UKUT 248 (LC), ruling that the agreement would permit equipment to be installed within a restricted area and that the potential for the introduction of significant additional apparatus was, practically and legally, limited.
The tribunal accepted that the right to upgrade equipment is a Code right. But how far does it extend? The landowner suggested that the Code did not prevent the operator from swapping one piece of equipment for another that was larger or of a different shape, or from adding two or three further pieces of equipment. But the Code requires there to be no adverse impact, or no more than a minimal adverse impact, on the appearance of the equipment – as opposed to the appearance of the host site. And the tribunal did not regard the minimal rights conferred by the Code as appropriate for an agreement for a term of 10 years.
Cases on the Electronics Communications Code are arriving thick and fast. Most recently, the litigation in Cornerstone Telecommunications Infrastructure Ltd v London & Quadrant Housing Trust [2020] UKUT 0282 (LC) explored the terms that the tribunal can impose in relation to sharing and upgrading.
The parties had agreed that the tribunal should impose an agreement giving the operator the right to install equipment on part of the roof of the landowner’s building. But the landowner wanted to impose an “equipment cap” – a common feature of agreements under the previous Code – limiting the operator’s right to install new apparatus, citing concerns about its responsibilities under the Building Safety Bill, which was introduced into parliament following the Grenfell Tower fire in 2017. But the tribunal preferred the thinking in Cornerstone Telecommunications Infrastructure Ltd v University of the Arts London [2020] UKUT 248 (LC), ruling that the agreement would permit equipment to be installed within a restricted area and that the potential for the introduction of significant additional apparatus was, practically and legally, limited.
The tribunal accepted that the right to upgrade equipment is a Code right. But how far does it extend? The landowner suggested that the Code did not prevent the operator from swapping one piece of equipment for another that was larger or of a different shape, or from adding two or three further pieces of equipment. But the Code requires there to be no adverse impact, or no more than a minimal adverse impact, on the appearance of the equipment – as opposed to the appearance of the host site. And the tribunal did not regard the minimal rights conferred by the Code as appropriate for an agreement for a term of 10 years.
It was not possible to know how communications technology would develop and it would not be appropriate to impose conditions that would slow down delivery and increase costs for the consumer. So the terms that the tribunal considered appropriate would permit upgrading without limit, while causing the least possible loss and damage, which could be achieved by restricting sharing to not more than two operators (whose identity could change during the term of the agreement).
Unrestricted sharing of equipment on the roof of a large residential building would not be compatible with the requirement to ensure the least possible loss and damage to the occupiers of the building – because the more users of the apparatus there were the more burdensome it would become for the landowner to comply with its building safety obligations. But additional sharing would be permitted within the limitations of paragraph 17 of the Code – in which case, notice was to be given within 21 days.
The parties also disagreed about the consideration payable for the rights that were to be imposed. The operator offered to pay £1,618.45 pa, together with a modest contribution to professional fees, while the landowner sought a total of £16,000 pa. But the tribunal settled on compensation for legal expenses in the sum of £3,068 and on an annual consideration of £5,000 (reflecting a nominal site value, building maintenance, insurance, additional management burdens and the anticipated costs to the landowner of sharing and upgrading).
The tribunal’s calculations will interest all those involved in the telecommunications industry – as will its comment that it would be surprised if the market value of any agreement to confer Code rights over the rooftop of any residential building anywhere else in the country were much more, or much less, than £5,000.
Allyson Colby, property law consultant
