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The Electronic Communications Code and removal of apparatus

In a case brought by a local authority, the Upper Tribunal has ordered the removal of telecoms apparatus for the first time. Jonathan Wills explains why.

In Crawley Borough Council v (1) EE Limited (2) Hutchison 3G UK Limited LC-2022-000187 the Upper Tribunal (Lands Chamber) has ordered the removal of telecoms apparatus under the Electronic Communications Code in what is understood to be the first ruling of its kind.

The Operators had telecoms apparatus installed at Crawley Town FC’s Broadfield Stadium pursuant to a lease governed by the Landlord and Tenant Act 1954. The Council terminated the lease by s. 25 notice, proposing a new lease. The parties agreed multiple extensions of time for an application to Court for a new tenancy. Through an administrative error, the Operators did not apply for a new tenancy and the previous tenancy came to an end. The Council thus had a “right to require removal” of the apparatus under para 37(3) of the Code. It served a notice under para 40 requiring removal, and made an application for an Order under para 44 requiring removal.

The Operators served a para 20 notice seeking rights to install apparatus on a nearby part of the same stadium site. They were prevented (as the law stands) from seeking new rights over the present site by the decision in CTIL v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755, which is currently under consideration by the Supreme Court. [Update: the Supreme Court has now handed down its ruling]

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The Council sought removal within six months, such period being chosen (a) in order to allow the parties time to renegotiate a further potential agreement, and (b) because any Reference based on the new para 20 notice would have to be determined within six months.

The Operators asked the Tribunal for a stay of the Reference pending the decision in Compton Beauchamp or alternatively pending the resolution of its intended application under para 20 for rights over the nearby site.

Judge Cooke accepted the Council’s submission that she had no discretion as to whether to make an Order requiring removal. Although the Code does not spell out whether such discretion exists, and if so, what the applicable test should be, it does refer to the landowner having a “right to require removal”, with no caveats. She noted that one of the intentions of enacting the new Code was to create a clear right to require removal, in contrast to the less clear position under the old Code. Further, there was no public interest test imported into either para 40 or para 44 (such as exists in para 21(3) where rights are sought under para 20, or where rights are terminated under para 31(4)(d)).

It was acknowledged that the Operators were concerned at a potential gap in coverage at the site, but it was held that any such gap was of the Operators’ own making. If the Tribunal were to delay an Order for removal, it would be for reasons that are not legitimate. Removal was therefore ordered.

It was noted in argument that if the parties come to an agreement for continuing occupation at the present site, such agreement might not be capable of conferring “code rights” (as the law stands per Compton Beauchamp) because the Operators are already in situ, but this would not stop a contractual agreement being entered into between the parties.

Jonathan Wills is a barrister at Landmark Chambers. He represented Crawley Borough Council. Oliver Radley-Gardner QC of Falcon Chambers represented EE and Hutchison 3G.

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