Electronic Communications Code: first skirmish under the part 6 removal process

Since the current Electronic Communications Code was introduced in 2017, swathes of it have come under the judicial microscope and even resulted in impending legislative updates.

Until now, there has been no scrutiny of the process under which telecommunications apparatus is to be removed following termination of the underlying agreement.

Background

Paragraph 37 of the Code prescribes a strictly defined set of circumstances in which a landowner has the right to enforce removal of telecommunications apparatus from its land. 
One of those circumstances is where the Code agreement has come to an end, either because the termination process in Part 5 of the Code has been followed to its conclusion or because Part 5 of the Code did not apply to the agreement.

Once a landowner can make out one of the prescribed circumstances, it is entitled to give a statutory notice to the operator requiring it to remove its apparatus and reinstate the land, and specifying a  reasonable timeframe for the operator to take both steps.

However, if the operator and landowner do not agree upon the reasonable timeframe within 28 days of service of the removal notice, the landowner is not entitled to undertake any self-help remedy or take steps to enforce the apparatus’s removal. Instead, it must apply to the Tribunal for a removal order, and it is then for the Tribunal to determine what is a reasonable period for removal. 

Case

In the recent case of Crawley Borough Council v EE and Hutchison 3G UK Limited, EE and Hutchison 3G (the Operators) had installed and maintained apparatus at Crawley Town FC’s stadium under a lease, which was granted prior to the Code coming into force in 2017 (the Lease). This meant it had statutory protection under the Landlord and Tenant Act 1954 rather than under Part 5 of the Code.

Crawley Borough Council Crawley served a notice on the Operators under the 1954 Act to bring the Lease to an end and proposing terms for a new lease. However, no new lease was agreed and due to an “inadvertent” oversight, the Operators failed to issue proceedings before expiry of Crawley’s notice.

Crawley served a removal notice on the Operators citing that the Lease had come to an end and Part 5 of the Code did not apply. As the parties were unable to reach agreement as to the reasonable period for removal, the matter was referred to the Tribunal for determination.

Arguments

Crawley sought removal of the Operators’ apparatus within a six month time period. It argued this would be a sufficient period of time for the Operators to make an application to the Tribunal in relation to a proposed nearby replacement site and have it determined within the statutory window of six months, therefore ensuring network coverage. 
By contrast, the Operators accepted that Crawley was entitled to serve its removal notice but it was concerned that:

• a six month window would not necessarily be sufficient to ensure continuity because of the risk of an appeal
• the most cost-effective solution would be for them to simply obtain a new Code agreement on its existing site, a process, which whilst currently prohibited, was anticipated to be permitted by the then impending Supreme Court decision in the consolidated Compton Beauchamp, Ashloch and On Tower cases

As such, it sought either an indefinite stay of the proceedings or an indeterminate longer period than six months in order to remove its apparatus.

Decision

Whilst the Tribunal was sympathetic to the Operators’ position, upon careful consideration of Part 6 of the Code it concluded that Crawley had a right to enforce removal, and it had no jurisdiction to take into consideration the wider public interest in the Operators maintaining its network and/or the costs of having to relocate to an almost identical location within the stadium.

As such, the Tribunal was unable to order a stay of the application and proceeded to consider what would be a reasonable period for removal of the apparatus.

Whilst the judgment does not give much insight into the Tribunal’s thinking in relation to the reasonable period, it appears it was ultimately swayed by Crawley’s reasoning and the absence of a counter proposal for a longer, fixed time period and so ordered that the Operators must remove its apparatus within six months of the date of the judgment.

Comment

This decision is the first judicial commentary upon the application of the removal process.

However, it is a relatively short judgment and does not necessarily seek to set down wider principles or a framework in the way that the industry has come to expect from earlier Tribunal decisions. We therefore still await clarification on the factors that the Tribunal considers it is entitled to take into consideration when assessing what amounts to a reasonable period for removal.

The first shots may have been fired in anger, but it would appear that there’s still a lot of ground to be fought over in respect of the battle for Part 6 of the Electronic Communications Code.

Crawley Borough Council v EE and Hutchison 3G UK Limited LC-2022-187