0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

EE Ltd and Hutchinson 3G UK Ltd v the Trustees of Meyrick 1968 Combined Trust of Meyrick Estate Management [2019] UKUT 164 (LC)

4 October 2019

Landowners were unable to show that they had a genuine intention to redevelop land to enable them to oppose the imposition of code rights under the Electronic Communications Code 2017.

Facts

The contractual terms of existing mast leases on a site owned by the respondents (the Trustees) had expired and negotiations for new leases had proved inconclusive.

The claimants (EE) served notice on the Trustees under paragraph 20 of the Electronic Communications Code 2017 (the Code) requiring the Trustees to confer new code rights on EE. The Trustees resisted on the basis of paragraph 21(5) of the Code. This provides that a court may not order the imposition of code rights:

“if it thinks that the relevant person intends to redevelop all or part of the land to which the code right would relate…..and could not reasonably do so if the order were made.”

 The Trustees wanted to replace EE’s existing masts with their own masts. The reason for this was because, under the Code, rights can only be acquired over land and the definition of “land” in the Code specifically excludes electronic communication apparatus. This meant that if the Trustees erected their own masts, those masts would not be subject to code rights and so the Trustees could negotiate rent and terms outside of the Code (which, because of the way code rights are valued under the Code, would inevitably lead to higher rents).

Issue

Did the Trustees have a genuine intention to carry out their works?

Decision

Although the Trustees had planning permission for their new masts and resources to pay for those masts, the Upper Tribunal (Lands Chamber) decided that they did not have a firm, settled and unconditional intention to do the works.

The Trustees claimed that they wanted better broadband on their estate, but they had not approached their providers to discuss improvements to the service and the new masts were not the only (or even the best) way of improving their broadband. Also, because EE were not prepared to use the Trustees’ masts for operational and commercial reasons, it appeared likely that the scheme would prejudice access to mobile coverage as well. So it was wholly implausible that the Trustees, who owed fiduciary duties to their beneficiaries, would waste their resources on such a scheme. It was clear that the Trustees’ redevelopment plans were purely an attempt to frustrate EE’s application for the imposition of code rights.

Points to note/consider

  1. This is the first reported case on the use of the redevelopment ground to oppose the imposition of code rights under the Code. The judge rejected the argument that the Upper Tribunal was bound by the case-law that applies where a landlord opposes the grant of a new lease on the basis of the ground contained in section 30(1)(f) of the Landlord and Tenant Act 1954. However, she did accept that ground (f) principles should apply where relevant.

  2. Applying ground (f) principles here meant that the Trustees had to satisfy a two-stage test. They had to show both a reasonable prospect of being able to carry out the works (an objective test) and a firm, settled and unconditional intention to carry out the works at the date of the hearing (a subjective test). In this case, the Trustees were able to satisfy the objective test, but not the subjective one.

training and events

24Oct

Claims Club Manchester office

We will be discussing the Human Rights Act, school claims and a legal update on 'hot topics'.

View event

focus on...

Legal updates

Foster carers are not ‘workers’ according to the Employment Tribunal

For anyone who has followed the evolving case law in the social care sector, this title is likely to raise some questions. Most notably, “What about the decision in Armes?”

View

Brexit resources

More concerns on the horizon for social care services and private providers

In a survey conducted by Unison this summer more than half of our social workers say they are considering leaving the profession for a less stressful position.

View brexit resources

Upcoming webinars

Care Quality Commission and health & care regulatory update

Carl May-Smith will provide an update on CQC & Competitions & Markets Authority enforcement, a recent Tribunal decision on the registration of learning disability & autism services and the latest in CQC’s review of restraint, seclusion and segregation.

View

Legal updates

Comprehensive land registration: 2025 target set for the public sector

87% of the ownership of land in England and Wales is registered at HM Land Registry. The Land Registry is now aiming to close the 13% gap, and secure the full registration of all freehold land in England and Wales by 2030.

View

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

David Harris

David Harris

Professional Development Lawyer

View profile

mailing list sign up



Select which mailings you would like to receive from us.

Sign up