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Lawbite: Interim Code Rights - balancing prejudice with the public benefit

  • United Kingdom
  • Litigation and dispute management
  • Real estate
  • Real estate litigation - LawBite

26-08-2020

EE Limited & Another v Cooper & Another [2020] UKUT 0214 (LC)

EE and Three sought interim rights under paragraph 26 of the Electronic Communications Code (“the Code”) to enter land owned by the respondents at Windmill Farm in Halifax in order to carry out a survey to determine whether the land was suitable for the installation of apparatus. Upon the land was a dilapidated stables and dilapidated farmhouse, it appeared to the operators to be unoccupied.

The operators had served notice under paragraph 26 of the Code. The respondents, who are the registered proprietors of the land, were written to on four occasions for access to survey the land but no response was received. Following this, the operators made an application to the Tribunal to confer the rights they were seeking.

The operators relied upon paragraphs 105 (5) and (6) of the Code; they said that the land was unoccupied, and that therefore references in the Code to “occupier” are to be taken to be references to the registered proprietors, pursuant to subparagraph (6).

However, the Tribunal had no evidence about the land itself and was unable to find the land was unoccupied.

This was relevant to whether or not the Claimants had identified and served everyone whose interest would be prejudiced by the imposition of Code rights, as paragraph 105(6) requires, because the register of title indicated not only that there were registered proprietors, but also a mortgagee and a person with the benefit of a restriction over the land.

In the context of therefore considering the test for the imposition of interim rights (which requires the Tribunal to find a good arguable case that the two conditions set out under paragraph 21 of the Code are made out) the Tribunal was required to balance prejudice with public benefit. Whilst accepting that the conferral of the interim rights would give rise to a public benefit, the rights sought would cause considerable prejudice, and in the absence of any evidence about the respondents or about the land the Tribunal could not find a good arguable case that the public benefit outweighed the prejudice to the occupiers of the land.

In the absence of evidence about the land or about the respondents the application for interim rights was therefore refused.

Key Points

  • This case turned on the evidence (or lack thereof), the due diligence and the approach undertaken by the operators in seeking to identify everyone whose interest would be prejudiced by the imposition of Code rights. The operators could not satisfy the Court that had been done.
  • Whilst earlier cases under the Code have noted the policy decision by parliament to give greater weight to the public interest in the provision of electronic communication networks than to the public interest in the preservation of private property rights, the case illustrates the Tribunal’s concern for the property rights of individuals and that  statutory powers are used in a proportionate manner. The respondents did not attend and were not represented at the hearing.
  • The Tribunal noted that it would not be impossible to impose an agreement conferring interim rights on a carefully limited and realistic basis where far more had been done to contact the occupier.