Cornerstoning the market

In the year that the First-tier Tribunal was trusted to deal with all new telecoms cases (pursuant to the First-tier Tribunal and Upper Tribunal (Chambers) (Amendment) Order 2024, which was brought into effect in March 2024), we consider the decisions issued by the FTT to date. All concern multi-skilled visits (and interestingly, all involve Cornerstone Telecommunications Infrastructure Ltd). Cornerstone Telecommunications Infrastructure Ltd v Duffy (LC– 2023-000743) Brendan Duffy put points which largely related to reasons why a mast should not be erected (where the operator was only applying for rights to survey), which the FTT deemed irrelevant. It went on to comment that there was no evidence of any significant prejudice or inconvenience and that there was no fixed intention to redevelop the site. As the terms sought by the operator were in a standard form, the FTT would impose an agreement in the terms sought. Cornerstone Telecommunications Infrastructure Ltd v The Mayor and Burgesses of the London Borough of Merton and another (LC-2023-000668) The reference concerned the roof a multi-storey car park situated above a shopping centre in Mitcham, south London. The first respondent sought transactional costs just shy of £12,000. The FTT determined that Merton was entitled to its reasonable transaction costs, assessed at £6,000 for legal costs and £3,000 for agent costs. Deductions were made on the basis that conduct had not been reasonable. Largely, this was as a result of a period of over a year where nothing really progressed, and then as result of Merton’s refusal to heed warnings given by the operator’s solicitors that the objection raised in relation to the MSV, not joining the freeholder, was baseless, given the decision in Cornerstone Telecommunications Infrastructure Ltd v St Martins Property Investments Ltd and others [2021] UKUT 262 (LC); [2021] PLSCS 176. While neither party was deemed to be the more successful one, only the respondent was to receive its litigation costs, on the basis that the MSV agreement was settled late due in part to the operator’s solicitors using a substantially less site provider-friendly precedent. The respondent’s reasonable costs were assessed at £8,746 against a costs schedule claiming just over £12,000. However, the FTT also determined that the sum payable should be reduced by 50% to reflect the respondent’s conduct. Cornerstone Telecommunications Infrastructure Ltd v McCarthy & Stone Retirement Lifestyles Ltd (LC-2023-000626) The respondent was a lessee of a retirement community. The site provider resisted the MSV on a number of grounds, all of which were rejected by the tribunal. First, an argument that the visit would cause stress for residents was dismissed; the respondent had failed to demonstrate that there was inconvenience which was not capable of being compensated in monetary terms. The tribunal relied on the decision in Cornerstone Telecommunications Infrastructure v University of the Arts London [2020] UKUT 248 (LC); [2020] EGLR 36, remarking that “the level of prejudice must be very high indeed”. Second, the FTT again relied on University of the Arts London, stating that, in assessing the public benefit condition, the tribunal need not consider whether alternative sites would confer the same or more public benefit, rather it must simply weigh the public benefit arising from the imposition of the agreement sought; the benefit was not diminished by the fact that the same benefit might be achieved by the use of an alternative site in the vicinity. A concern in relation to the content of the MSV agreement concerning breach of headlease covenants was rejected, as were further points arising in relation to privacy, largely concerning the use of drones. The tribunal made a costs order against the respondent. Cornerstone Telecommunications Infrastructure Ltd v Chilton Court Residents Association Ltd (LC-2023-000410) The MSV was objected to on multiple points; the FTT commented that the respondent “overstated the actual and potential risks that might be created by a non-intrusive MSV”. The respondents were unsuccessful in recovering the fees of having their professional agent act as their named access contact; compensation would reflect that fact. A request that the operator be permitted to hold keys/access codes, however, was rejected, the FTT finding that this was not appropriate given elderly residents. With regard to costs, the FTT commented: “… the principle that emerges from the jurisprudence of the Upper Tribunal is that the site provider is entitled to recover its reasonable transaction costs in full.” However, the respondent was seeking transaction costs of just over £61,000. The tribunal went on to identify costs which it did not consider were costs of the transaction, and duplicated costs. The FTT criticised the respondent for failing to establish the reasonableness of transaction costs. The FTT was not persuaded “reasonable” costs could amount to more than four times the highest previous award, and, taking into account the fact that the respondent had shown an unwillingness to compromise and insisted on taking some pedantic points, assessed the reasonable transaction costs at £15,000. Cornerstone Telecommunications Infrastructure Ltd v GHS (GP) Ltd and another (LC-2023-000587) This decision concerned costs only. The total transactional costs claimed by the respondent was circa £40,000. The tribunal determined that the respondent was entitled to £15,000. A large amount of the respondent’s costs related to the early period where there has been little active negotiation, and were not therefore reasonably incurred. Points which should have been easily resolved (including over the access to the rooftop and whether the survey would disturb a beehive) incurred a disproportionate amount of costs. The respondent also sought costs of the reference in the sum of circa £23,000. As they were deemed to have been the more successful party (as the award for transactional costs outstripped the operator’s best offer), the respondent’s reasonable costs were to be paid. The Tribunal assessed the reasonable costs at £9,000, then discounted these by 25% to reflect the level of success on the substantive issue by the respondent. Laura West is a director (barrister) of Fieldfisher Image © Umang Patel/Pexels