Back
Legal

Stand-offs resolved at the door of the tribunal may prove costly

The new Electronic Communications Code continues to make waves in the Upper Tribunal (UT). In Cornerstone Telecommunications Infrastructure Ltd v Central Saint Giles General Partner Ltd [2019] UKUT 183 (LC); [2019] PLCS 106 the issue that arose concerned costs. The operator had asked for access to the roof of a modern apartment building in the Central Saint Giles complex in London, designed by the Italian architect Renzo Piano. An important site nearby, which hosted its apparatus, was due to be redeveloped and the operator wanted to survey the roof of the apartment building to assess whether it would be a suitable replacement.

The operator explained that it required access on approximately three occasions within a four-week period and, although it was prepared to provide an indemnity against any resulting claims, wanted to cap the indemnity at £1m. But the landowners sought an indemnity in the sum of £10m. So the operator served formal notices on the owners of the freehold and long leasehold interests in the building, under paragraph 26(3) of the Code, seeking interim rights to enable it to carry out a “multi-skilled visit”. It also sought a panoply of ancillary Code rights – including the right to install and keep apparatus installed on the building throughout a 28-day period – which the operator sought out of an abundance of caution, rather than because the rights were required.

The landowners raised a number of points about the validity of the operator’s notice and were particularly concerned by the operator’s request for a right “to interfere with or obstruct a means of access to or from the land” under paragraph 3(h) of the Code, because they were concerned about the effect that this might have on their tenants. But, as is so often the way, the parties finally settled their dispute at the doors of the tribunal, reaching an agreement that allowed the operator access to carry out its survey in return for an indemnity in the sum of £10m, but which left the question of the parties’ costs – totalling more than £100,000 – unresolved.

The UT was “staggered” by the costs that the parties had run up between them, adding that, if the preparatory stages of the installation of new equipment were allowed to become “trials of strength involving legal firepower on the scale deployed in this case”, there was a serious risk that the objectives of the Code (which were to facilitate the provision of telecommunications services without delay and at limited cost) would be frustrated. The UT warned operators that they cannot simply demand unquestioning cooperation from landowners and cautioned landowners who refuse access for surveys that they cannot expect to recover costs on the scale incurred in this case. It deprecated the adoption of “confrontational tones”, criticised “senseless disputes”, “unnecessary demands” and “excessively technical arguments”, and condemned conduct that involved “over-reaching on one side and obstruction on the other” as “disproportionate, inappropriate, and unacceptable”.

The judge’s order for costs was equally unforgiving. Although the landowners had agreed to grant the operator access, the judge considered that they were the successful party and ordered the operator to pay them £5,000 each. The judge acknowledged that this was very much less than the parties had spent, but took the view that they need not have run up nearly as many costs as they had.

 

Allyson Colby, property law consultant

Up next…