The latest Code case suggests operators would be best advised not to rush to the tribunal.
In Cornerstone Telecommunications Infrastructure v University of the Arts London [2020] UKUT 248 (LC); [2020] EGLR 36, the Upper Tribunal (Lands Chamber) confirmed that an operator seeking interim rights under paragraph 26 of the Code may do so on a standalone basis, that is, there is no need for such an application to be parasitic on a paragraph 20 application for permanent rights. A recent case in which an operator sought interim rights has shed some useful light on how the tribunal might deal with cases involving third parties and, specifically, demonstrated some flexibility in relation to hearing processes in order to ensure a fair outcome. The decision also contains some useful commentary on costs.
The background
In EE Ltd and another v Aviva Investors Ground Rent Holdco Ltd and another [2021] UKUT 57 (LC) the operator was looking for an infill site for around two years. The property concerned is close to Old Street in central London. The block is residential, and the respondent to the application, Aviva, owns a 999-year head lease of the building. The application concerned a rooftop site over which certain leaseholders, residing in the penthouse apartments, had rights. The proposed site was therefore overlooked by areas in use as either terraces or gardens.
The case was caught by regulation 3(2) of the Electronic Communications and Wireless Telegraphy Regulations 2011 (as applied to Code proceedings by paragraph 97 of the Code) and therefore, the UT was obliged to consider and determine the application within six months. As is the usual practice, once statements of case had been filed, the matter was listed for a short hearing. At the hearing, the tribunal heard that the respondent had raised concerns about the structural capability of the roof to house the proposed installation and the impact that the apparatus might have on the rights of the third parties to use and enjoy their roof space.
Mindful of the fact that, although this was an application for “interim” rights under paragraph 26, it was for a period of two years (rather than being “interim” in the sense of merely establishing a holding position until a corresponding paragraph 20 application was determined by the UT). Further, because the application was not agreed, the tribunal took the view that it could not be satisfied, on the material before it at the first hearing, that the test under paragraph 26 where an agreement could be imposed was met.
Under paragraph 26(3)(b) the tribunal would need to find that there was a “good arguable case” that the test in paragraph 21 for the making of an order under paragraph 20 was met. Accordingly, it adjourned the hearing and encouraged the operator to serve notice on the freeholder and leaseholders of the flats, on the basis that the tribunal may be expected to take the privacy of the same into account when considering how to exercise its discretion under paragraph 26.
Prior to the final hearing, further discussions concerning the structural issues raised by the respondent were had, and the application was ultimately agreed by Aviva. The operator also gave notice to the other interested parties. Of these, the freeholder indicated that it would be content to be bound by the agreement. One of the three leaseholders and a tenant of one of the flats did not play any part in the proceedings.
The two other leaseholders did not oppose the application, indicating instead that they would pursue a claim for compensation. With no parties now objecting to the interim application and any inconvenience being capable of being adequately compensated by money, the UT found that the test contained in paragraph 26 was met, and granted EE’s application for a two-year period.
Costs
The operator sought costs against Aviva, on the basis that Aviva had initially opposed the interim application where EE had understood that Aviva would not, and because matters raised by Aviva – concerns for the structural integrity of the building and in relation to the leaseholders – had put the operator to the additional expense of expert evidence, but had ultimately fallen away by the date of the final hearing.
The UT declined to make an order for costs against Aviva. The rationale was premised on a number of factors. First, the nature of the paragraph 26 proceedings themselves; the parties were not at liberty to enter into an agreement without the oversight of the tribunal. Secondly, because the timing of the application was dictated by the operator, thus implying that waiting until the parties had been able to exchange fuller information might have saved costs, and that although this was a matter for the operator, the consequences of its decision were more expensive proceedings. Thirdly, Aviva’s objections had been raised on reasonable concerns. Fourthly, the cost of dealing with queries and objections of the type raised by Aviva should be borne by the operator, not by the site provider (applying paragraph 84(2)(a) of the Code). Finally, the case as put by the operator was, initially, evidentially defective.
A useful warning
Following the decision, operators would be well advised to take a broader approach in relation to consulting with relevant parties, and to take their time before rushing to the tribunal. Where they fail to do so, slower and more costly proceedings may result and they will need to accept that they are solely responsible for the same.
Laura West is a senior associate (barrister) in the real estate litigation team at Pennington Manches Cooper
