(1) EE Limited (2) Hutchison 3G UK Limited (Operators) and (1) 100 Nox SARL (Site Provider)

The Upper Tribunal has refused EE Limited and Hutchison 3G UK Limited’s (the “Operators”) application for interim rights under the Electronic Communications Code (the “Code”).

The Operators sought interim code rights under paragraph 26 of the Code to carry out an intrusive survey of the rooftop at 11 Belgrave Road, London to determine the site’s suitability for telecommunications equipment. 100 Nox S.A.R.L (registered in Luxembourg) (the “Site Provider”) was the registered proprietor of the premises, which was subject to multiple leases.

The Operators initially wrote to the Site Provider at its registered office in Luxembourg on 27 October 2021, but did not receive a response. On 3 November 2021 the Operators sent a chaser letter to the Site Provider but again, received no response. The Operators subsequently served a paragraph 26 notice seeking agreement to the conferral of interim Code rights (the “Notice”) by international tracked delivery on 25 January 2022. The Operators obtained proof of delivery of the Notice, but the proof did not contain the Site Provider’s signature and there was otherwise no evidence that the Notice came to the attention of the Site Provider.

The Operators subsequently made an application to the Tribunal on 23 March 2022 for the conferral of interim Code rights. The Tribunal served a notice of reference at the Site Provider’s registered office in Luxembourg but the Site Provider failed to comply with the directions. It also did not show up at the hearing.

Pursuant to paragraph 26 of the Code, the Tribunal has discretion to make an order conferring interim rights on the Operators if it has served on the Site Provider a notice complying with paragraph 20(2) of the Code and can show a “good arguable case” that the test in paragraph 21 of the Code is met.

The Tribunal refused the Operators’ application for interim Code rights. Upper Tribunal Judge Elizabeth Cooke held that there were four difficulties with the Operators’ application, which were as follows:

1. The Site Provider appeared to know nothing about the Operators’ application 

Despite the lack of response, the Operators argued that the Notice and referral had nonetheless been correctly served on the Site Provider. Whilst Judge Elizabeth Cooke accepted that the Notice was validly served she was not inclined to exercise her discretion in the Operators’ favour when there was no evidence that the Site Provider received the Operators’ letters, the Notice, the notice of reference, nor was there any evidence that the Operators had made a real effort to contact the Site Provider.

The Operators had reviewed the HM Land Registry register of title and the Luxembourg register of companies to locate the Site Provider’s registered address. However, the Operators did not visit the property that was the subject of the referral, or make enquiries of those who occupied the floors as to how they communicate with their landlord.

If the Operators had visited the property they could have inspected the roof from floor-level and ascertained whether any other telecommunications apparatus was on there, which in turn would have enabled the Operators to make enquiries with those operators as to how they communicate with the Site Provider. Judge Elizabeth Cooke commented that this should all have been done as “a matter of common sense” once the Site Provider had failed to respond to correspondence.

2. The covering letter of the Notice was mis-addressed 

The covering letter was incorrectly addressed to London Borough of Lambeth, although the Notice itself referred to the correct parties. The information required to be conveyed by paragraph 20(2) of the Code was given so it was acknowledged that the Notice was still valid. However, Judge Elizabeth Cooke held that the misaddressing would have likely misled the Site Provider, and that a representative of the Site Provider might have seen the covering letter and concluded that it was sent by way of copy for information purposes only. As a result, the representative may not have read as far as the enclosed Notice itself.

3. There was no evidence that the Operators had identified the correct respondent 

In addition, no evidence was provided to the Tribunal to prove that the rooftop was not let to a third party. The Operators’ claimed that they had reviewed the lease of the top floor and ascertained that the demised premises did not include the roof, but Judge Elizabeth Cooke noted that there were two leases of the top floor on the HM Land Registry register of title and the Operators appeared to have only reviewed one of them. The other leases of the sixth floor of building may have included part of the roof, or any easements over the roof.

4. There was no evidence as to what the Operators intended to do on the roof by way of the “intrusive survey” 

The Tribunal held that it cannot perform the balancing exercise set out in paragraph 21 of the Code, even on a “good arguable basis”, where it does not know what the Operator wants to do and does not know anything about the Site Provider or about the possible prejudice to it that could be caused by making the order.

Takeaway points

  • The Upper Tribunal expects operators to ensure that notices are actually received by site providers, which is an additional hurdle to simply ensuring that notices are validly served. Where a site provider is based overseas and it is not clear as to whether a notice or correspondence has been received, operators should be pro-actively taking steps to find other ways to ensure correspondence is brought to their attention. This could include visiting the site, or making enquiries with any subtenants as to how they typically communicate with their landlord.

  • Operators should ensure that they have determined who the relevant “occupier” of the site for the purposes of the Code is prior to applying to the Upper Tribunal. This includes reviewing the extent of the demises of any subleases of the site.

  • Operators need to be specific about the scope of an intrusive survey to enable the Upper Tribunal to perform the balancing exercise at paragraph 21 of the Code, failure to do so may result in the Upper Tribunal refusing to make an order.