Since we last covered decisions under the new Electronic Communications Code back in January, we have had four new decisions from the Upper Tribunal, three issued in April 2019 and one in May 2019.

Two of the decisions touch on the same point; whether Code rights could be ordered to be granted over land already occupied for the purpose (in specific factual circumstances), with the third dealing with rights to require apparatus to be removed to facilitate access to a new residential development. However, the range of points arising on these three cases alone is broad, demonstrating that there is still a smorgasbord of issues up for determination under the new Code. The lesson is largely that technical points arising in relation to the wording of the Code are unlikely to assist landowners, where Operators might have more luck. As with the earlier cases, these three decisions demonstrate that, in general, it is still very much an Operators’ world, save in cases where there is almost complete disregard for the intended process set out in the Code.

The cases are as follows:

  • Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] UKUT 107 (LC), 3 April 2019
  • Cornerstone Telecommunications Infrastructure Ltd v Keast [2019] UKUT 116 (LC), 8 April 2019
  • Evolution (Shinfield) LLP v British Telecommunications PLC [2019] UKUT 127 (LC) 15 April 2019
  • Cornerstone Telecommuncations Infrastructure Ltd v (1) Central Saint Giles General Partner Limited and (2) Clarion Housing Association Limited, [2019] UKUT 183 (LC), 24 May 2019.

We also get to grips with some colourful language, as we grapple with the concepts of ‘swiss cheese’ versus ‘cheddar’ rights, and deal with clever arguments presented by the eminent Brie Stevens-Hoare, QC. So, before we feta, sorry, fetter (couldn’t resist – sorry!) your appetite for Code decisions further, we invite you to see our full case note on our website here.

The fourth case is of real interest to the housing sector, since it features Clarion Housing Association. In that case, the Operator initially sought access for a non-intrusive survey. There was no substantive objection to a survey but the parties could not agree the level of indemnity which should be given by the Operator to the First Respondent, who was the freeholder (Clarion holding an inferior interest). Matters become protracted and in due course the Operator served notice for a more thorough survey.

Substantive matters between the parties were eventually settled, but costs could not be agreed and so the principle and quantum of costs came before the Tribunal for determination. The judgement is something of a cautionary tale, since the Tribunal was quite free with its criticism of all parties. The first and second respondents’ costs were assessed in the sum of only £5,000 each, meaning that only around 10% of the costs incurred were actually recovered by the respondents.

The message for housing associations and landlords is that telecoms applications by Operators are now something of a fact of life, which, notwithstanding the uncertainty around the new Code, need to be dealt without disproportionate costs arising.