It has been almost 18 months since the new Electronic Communications Code changed the legal landscape for telecoms operators and land owners. At its core, the Code is a framework for operators to obtain rights to install their apparatus on private land. The policy behind the Code is to improve our communications infrastructure so that the public has access to a choice of high quality telecoms networks. Once an operator has Code rights, they can only be terminated on limited statutory grounds and it is often a lengthy and complex process. However, land owners can oppose the grant of Code rights if they intend to redevelop their land and could not reasonably do so if Code rights were granted. The Upper Tribunal (Lands Chamber), which is the judicial body tasked with resolving disputes under the Code, has now released its first decision on this issue.

The operators, EE and Hutchinson 3G, had masts on an Estate in Hampshire owned by The Meyrick Trust. They sought to renew their rights under the old Code but negotiations had stalled, so the operators applied to the Tribunal to impose fresh rights under the new Code. The Trust opposed the application. It alleged that it proposed to redevelop the land by installing its own masts which would provide a private, wireless broadband network for the Estate as well as providing space for any operator to install apparatus for their mobile network. An important point to note is that operators can only obtain Code rights over land, which expressly excludes equipment such as masts. Therefore, by installing its own masts, the Trust would be able to negotiate terms (and importantly higher rents) with the operators free of the constraints of the Code.

The Tribunal considered the cases regarding the Landlord and Tenant Act 1954, where a landlord can oppose the grant of a business lease renewal if it intends to redevelop. Whilst the 1954 Act cases are not binding on the Tribunal and there are differences in the drafting between the relevant provisions of the 1954 Act and the Code, the Tribunal adopted relevant principles from the cases:

• The land owner’s intention to carry out the redevelopment must be firm, settled and unconditional (the subjective test);
• There must be a reasonable prospect of bringing about the redevelopment (the objective test); and
• Both tests are judged at the date of the hearing.

The Tribunal was satisfied that the Trust had met the objective test: it had obtained planning permission for the masts and it had the finances to implement the scheme. However, the Tribunal doubted that the Trust had an unconditional intention to implement the scheme and instead found that the Trust’s true motive for the redevelopment was to prevent the acquisition of Code rights.  Land owners seeking to rely on redevelopment plans to resist Code rights should take note. If the evidence doesn’t stack up, the Tribunal has sent a strong message that they will not allow a land owner to purposefully frustrate a central policy of the Code.

EE Ltd and Hutchison 3G UK v Meyrick 1968 Combined Trust of Meyrick Estate Management [2019] UKUT 164 (LC)

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