Posted on 5 Aug 2020

Electronic Communications Code: Un-occupational hazards

In the latest of a raft of decisions concerning the new Electronic Communications Code ("Code") the Upper Tribunal has given guidance on the evidence needed to determine if land is "unoccupied" under the Code.

"Occupier" under the Code

The Code provides for the occupiers of land to agree "Code Rights" with telecom operators which allow the operators to use the land. If no agreement is forthcoming operators can apply to the Tribunal to impose an agreement, where the prejudice caused to an occupier can be adequately compensated by money and where the public benefit outweighs that prejudice.

Paragraph 105 of the Code defines who is an "occupier" under the Code. In cases of unoccupied land, the occupier is defined by paragraph 105(6) as the person who for the time being exercises powers of management or control over the land. If there is no such person than the occupier will be every person whose interest in the land would be prejudicially affected by the exercise of a code right in relation to the land.

EE Ltd v Cooper

In EE Ltd v Cooper [2020], EE sought interim rights to carry out a survey to determine suitability over farmland. The land in question comprised of what was described as a "dilapidated" farmhouse and stables. Two visits had been made to knock on the door of the farmhouse with no answer. No attempts had been made in the seven months prior to the hearing.

EE considered this sufficient to demonstrate that the land was unoccupied and, relying on paragraph 105 sent various letters and served a notice to the legal proprietor's address, as recorded at the Land Registry, before making an application to the Tribunal. There was no response from the legal proprietor and they were not represented at the Tribunal hearing.

Tribunal decision

The Tribunal refused to grant the rights sought, finding that it was not possible to determine whether the land was unoccupied within the meaning of paragraph 105 of the Code on such little enquiry. In particular, the Tribunal found that, where there were buildings on the land, it was not appropriate to consider the land vacant, unless perhaps the buildings were derelict.

Furthermore, the Tribunal found that even if the land was "unoccupied" the Land Registry title disclosed that there was a mortgagee of the land and a person with the benefit of a restriction and therefore there were others, whose interest in the land would be prejudicially affected, who should also be treated as occupiers. The Tribunal also noted it would be unable to consider the application without information about the prejudice that might be caused to those with interest in the land.

Consequences of this decision

Whilst the extent of enquiries which an operator must undertake to ascertain whether land is occupied remains unclear, this decision provides welcome protection to occupiers of rural land. The decision ensures that operators cannot attempt to leapfrog occupiers' interest in land having carried out only cursory enquiries, or assume that buildings are unoccupied simply because they do not appear to be in good condition. However, that is not to say that occupiers should simply ignore operator correspondence in the hope of frustrating operators' attempts to establish code rights.