EE Ltd and another v Islington London Borough Council

Telecommunications – Electronic communications code – Interim rights – Claimant applying for full Code rights and interim rights over new site to replace existing site threatened with redevelopment – Loss of existing site contingent on planning permission and termination proceedings – Whether good arguable case being made out – Application granted The claimant companies had a telecommunications site on the roof of Leroy House, a building in Essex Road, Islington and about 140 metres from Threadgold House, a block of flats on the Dovercourt Estate. They were required to remove their equipment from Leroy House and had identified Threadgold House as an appropriate alternative site. Negotiations with the respondent local authority had achieved a substantial level of agreement before the new Electronic Communications Code came into force on 28 December 2017 but they were never completed. The claimants made a reference to the Upper Tribunal seeking the imposition of a long-term agreement for rights under para 20 of the Code to enable them to install electronic communications apparatus on the roof of Threadgold House. Additionally, they sought an order under para 26 of the Code imposing an agreement in similar terms for an interim period lasting until the final determination of the reference. The interim rights agreement would enable the claimants to install and use their apparatus, but would not attract the statutory rights of continuation or the same level of protection against removal as an agreement granted under para 20. The circumstances in which the tribunal might make an order for interim rights were described in para 26(3). In this case, as the parties had not agreed to the making of an order, the tribunal had to be satisfied that the claimants had shown a good arguable case that the test in para 21 for the making of an order under para 20 was met. Held: The application was granted. (1)An order under para 20 imposed an agreement providing for full Code rights. The test for making such an order was in para 21: (i) whether the prejudice caused to the relevant person (the site owner and anyone claiming under it) by the making of the order was capable of being adequately compensated by money; and (ii) whether the public benefit likely to result from the making of the order outweighed the prejudice to the relevant person. In considering whether the second condition was met, the tribunal was directed by para 26(4) to have regard to the public interest in access to a choice of high-quality electronic communications services. The application in this case related to a new site on which no apparatus had yet been installed, and the duty to determine the application within six months was therefore engaged. (2) The first para 21 condition concerned the adequacy of money as compensation for any prejudice caused to the claimant by the making of the order. That did not require the tribunal to undertake an exercise in quantifying compensation at this stage. It did not need to determine whether the claimant was right that no significant prejudice would be suffered by the respondent, or whether the respondent was correct that the addition of apparatus to the roof of its building would significantly reduce its value and ought to result in significant compensation. What mattered was whether the type of prejudice that would be suffered was such that money would not provide adequate compensation. There seemed to be nothing in this case which was incapable of being compensated in money in principle. The fact that the parties were negotiating for the imposition of rights in return for an appropriate payment, and fell out only over the amount of that payment, indicated that money was capable of compensating the respondent. As to the second condition, the claimants’ concern was that if they were required to remove from the roof of Leroy House before they had had sufficient time to decommission their equipment and install replacement apparatus at Threadgold House, their customers would suffer a loss of coverage for electronic communications. The delay in obtaining access (assuming the para 20 application succeeded) would not be great, as there were only three or four months before the tribunal was required by law to reach a determination on the claim for full Code rights. Nevertheless, if mobile phone coverage provided by the claimants was lost, even for a short period, it was likely to be regarded by the public as an unacceptable break in service. It would be damaging to the public interest identified in para 21. The risk was not possible to quantify. It was contingent on a number of unknown matters. The first was planning permission being granted for the demolition or alteration of Leroy House. It was not known whether planning permission was likely to be granted. The tribunal should approach an application for interim rights on the basis that a Code operator should be required to extract the maximum advantage from the rights it might enjoy elsewhere. In normal commercial negotiations one would expect Code operators to seek to reach agreement with landlords. The respondent was not expected to forego a sensible commercial approach. (3) The tribunal’s overall assessment at this stage was that there was a good arguable case that the public benefit in reducing the risk of the claimants’ electronic communications coverage being lost or compromised in a business and residential neighbourhood (albeit that risk was contingent) outweighed the small amount of prejudice which might be caused on the respondent’s side by the imposition of interim Code rights. That prejudice would be compensated in money which had to some extent to be set off against the weight to be given to it. The claimants had made out a good arguable case that the para 21 conditions were met, subject to one additional point. If planning permission was not obtained for the re-development of Leroy House, so that the removal of the claimant’s equipment was not required, the balance of public interest against private prejudice would tip the other way. The claimants would be able to remain in their current location and the public would not be disadvantaged. The grant of planning permission was a matter of record which was readily ascertainable and it was appropriate in this case that an order for the imposition of interim rights should be conditional on planning permission being granted for the demolition and reconstruction of Leroy House. Graham Read QC (instructed by DFW LLP) appeared for the claimant; Jonathan Wills (instructed by Fladgate LLP) appeared for the respondents. Eileen O’Grady, barrister Click here to read transcript: EE Ltd and another v Islington London Borough Council