On 28 December 2017 the Electronic Communications Code (the "Code") came into force which at its core aimed to "speed up" UK connectivity and access to land for telecommunications purposes.
Seven years on and despite amendments to the Code, extensive commentary and case law, operators continue to face challenges when attempting to proactively acquire new telecommunications sites and secure the renewal of existing agreements with unresponsive site providers.
The expectation placed on parties by the Electronic Communications Code - Code of Practice is clear: communication between parties is vital to facilitate effective working relationships and ultimately, avoid the need for costly and time consuming litigation. A co-operate approach, even when parties disagree on terms, is key.
Whilst the Code of Practice is not a legally binding document, a recent decision in the First-tier Tribunal (the "tribunal") decided in overwhelming favour of the claimant operator, Cornerstone Telecommunications Infrastructure Limited ("Cornerstone") highlights the risks site providers face when failing to engage.
The matter concerned an application made by Cornerstone for a new agreement under Part 5 (paragraph 33 and 34 ) of the Code in relation to a rural greenfield site located in Wakefield. The respondent failed to provide any response to Cornerstone following the service of a paragraph 33 notice despite extensive efforts from Cornerstone (and its instructed agents) to progress matters consensually.
Proceedings were issued by Cornerstone and the respondent again failed to respond and did not attend the initial case management hearing listed by the tribunal. The repeated non-compliance with tribunal directions led to a barring order against the respondent. Following a disposal hearing the tribunal ordered the parties enter a new agreement in Cornerstone's proposed form and determined that the appropriate site payment for the new agreement, should be £1,750 per annum, per the Vache Farm decision.
The tribunal also set the interim rent payable for the period between the date of Cornerstone's reference and the commencement date of the new agreement should be £1,750 and Cornerstone were awarded their costs, in full, summarily assessed at £10,172.50.
This decision helpfully demonstrates the proactive approach the tribunal will take when operators are faced with unresponsive site providers. At the heart of the Code is the requirement for parties to engage - site providers cannot bury their heads in the sand and expect new agreements to simply replicate outdated terms which do not reflect the Code's objectives to bridge the connectivity gap in the UK.
DAC Beachcroft acted for the operator, Cornerstone and instructed James Andrews-Tipler of Falcon Chambers for the disposal hearing.
