Telecoms Code: future battlegrounds

The first two years of the new Electronic Communications Code saw a significant amount of litigation: two Court of Appeal decisions and 10 reported decisions of the Upper Tribunal (Lands Chamber). Of those disputes, Judge Elizabeth Cooke has identified five key cases (of which I have been very fortunate to be involved in four) that have all, in their own way, been groundbreaking as we navigate through the interpretation of the Code (see box). That, together with ongoing cases and working closely with telecoms specialists across the country, has given me a real insight into what is coming next. There are three key areas that are concerning, both to me – as a real estate lawyer – and to land and property owners that I work alongside. 5G and electromagnetic-field exclusion zones Exclusion zones created by electronic communications apparatus (ECA) have not been a particularly contentious issue in the past. However, this is an area which is going to see a lot of discussion, debate and disputes in 2020. Exclusion zones for 5G apparatus are significantly larger than those for 3G or 4G sites. Operators are somewhat reluctant to provide landlords with details of the exclusion zones for 5G ECA. Where exclusion zone plans have been provided, they often do not show the larger exclusion zones applicable to the general public, but instead show a smaller exclusion zone for designated occupational workers. But what does this mean?  An exclusion zone is just that – an area which should not be entered. There are two types of exclusion zones: larger general public exclusion zones and smaller occupational workers zones.  General public exclusion zones are the areas which people without specialist training and equipment should not enter. Members of the general public will include facilities managers, building owners, caretakers, lift contractors, window cleaners and air-conditioning contractors.    Occupational workers zones are smaller exclusion zones, as occupational workers are those individuals whose occupation provides them with specialist training in working with radio frequencies and understanding of the risks associated with entering excluded areas. Owners and occupiers of buildings and land have duties to ensure that anyone coming onto their land is safe. The burden this puts on landlords in complying with health and safety legislation is onerous and requires serious consideration.   If operators are either not providing owners and occupiers with relevant exclusion zones or only providing them with the smaller occupational zones, owners and occupiers could find themselves at risk of claims. Owners are also at risk of substantial damages claims from neighbouring buildings if the exclusion zones emanating from their property affect the neighbouring owner’s use or ability to redevelop. Existing sites with expired agreements One of the most significant questions of Code interpretation that is still outstanding is: what is the position in respect of agreements which expired before the Code came into force? Can such agreements be renewed under the Code as subsisting agreements? Can operators seek conferral of new Code rights on the same site, notwithstanding the decisions in Compton Beauchamp and Ashloch (see box)? Or will there be no right to remain? Operators are currently serving unnecessary paragraph 27 notices under the Code in order to try and circumvent the decisions in Compton Beauchamp and Ashloch, but does this provide jurisdiction in circumstances where otherwise there would be none? These arguments again raise issues regarding the Code’s transitional provisions. Some guidance on this is expected in the first quarter of 2020. Access The decision in University of London gave rise to questions about the extensive powers that operators now have to enter buildings. Do they now have more powers than the police? Individuals approached by an operator to enter their property to carry out a survey are quite powerless if they do not want them to come in or do not agree with the terms; the only way to prevent an operator coming onto their property is by incurring significant costs fighting this in the Upper Tribunal. The burden of this will put off many from taking on operators who are looking to exercise these powers.  Due to the cost for individuals, this is more likely to become an issue debated in the public arena, not necessarily in court. The serious nature of where the interpretation of the Code has settled in this regard is something that I fully expect to enter public consciousness in 2020.  My 2020 vision Exclusion zones, expired agreements and access are just three areas that I see causing the judiciary problems in 2020. These go alongside expected decisions on: valuations of rent under the Landlord and Tenant Act 1954; valuations of consideration and compensation under the Code; and determinations on the terms of full Code agreements.  The Code thus far has had a fraught existence, which is something I see continuing into at least next year. I might not have 20/20 future vision, but one thing that does concern me is that one of the key purposes of the new Code – to bring connectivity to rural areas – has been lost in favour of operators aggressively upgrading more lucrative urban sites. I hope this imbalance is redressed in 2020. The big five so far The key cases identified by Judge Elizabeth Cooke at the RICS Telecoms Conference in November were: Cornerstone Telecommunications Infrastructure Ltd v University of London [2019] EWCA Civ 2075; [2019] PLSCS 226 EE Ltd and another v Islington London Borough Council [2018] UKUT 361 (LC); [2018] PLSCS 191 EE Ltd and another v Trustees of the Meyrick 1968 Trust [2019] UKUT 164 (LC); [2019] PLSCS 131 Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates [2019] EWCA Civ 1755; [2019] PLSCS 201 Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd and another [2019] UKUT 338 (LC); [2019] PLSCS 216 Thekla Fellas is a partner at Eversheds Sutherland