The new and highly controversial Electronic Communications Code – which enables telecommunications equipment to be effectively forced on reluctant landowners – has come under analysis for what is believed to be
Two mobile phone operators argued that they urgently needed to install equipment on the roof of a residential block, but faced opposition from the building's owner, a local authority. The urgency arose because an existing telecommunications site, about 140 metres away on the roof of another building, was under threat. The owner of that building had sought planning permission to redevelop the site and had indicated that it would require the equipment's removal.
In the circumstances, the operators had applied under the Code, which was created pursuant to the Digital Economy Act 2017, for an agreement to be imposed on the council, requiring it to allow the equipment’s installation. Pending determination of that application, the operators sought an interim order enabling the installation to take place forthwith.
The council argued that it was seriously prejudicial to impose an agreement on a landowner on terms which it would not willingly have accepted. Residents of the block would also inevitably suffer noise, disturbance and inconvenience whilst the equipment was being installed.
In ruling on the matter, the Upper Tribunal (UT) agreed that landowners who are deprived of their right to do as they wish with their own property, and who are made to accept a price that is lower than they would like, can be said to have sustained an infringement of their property rights which is prejudicial.
However, it observed that the whole premise of the Code is that there is a need, in the public interest, to impose agreements on unwilling property owners in return for consideration which Parliament has deemed to be adequate. The operators said that they would need about eight months to arrange a seamless transition of their equipment between the two buildings and that any delay would place mobile phone coverage in a densely populated area in jeopardy.
In granting the interim order sought, the UT found that the operators had established a good arguable case that it was necessary and that any relatively slight prejudice suffered by the council could, in principle, be compensated in money. Whether a permanent agreement would be imposed and, if so, the amount of rent that the operators would be required to pay the council, remained to be decided. The UT directed that the interim order should only come into effect if planning consent is granted for the redevelopment of the other building.