A landowner, with planning permission to redevelop, has been unable to prevent two mobile operators claiming rights over his land, because he did not have a “real” intention to carry out the works.
In the case (EE Limited -v- Sir James HE Chichester  UKUT 164 (LC) the mobile operators’ lease of the site had expired in 2017. The parties’ negotiations to agree a new lease failed, and the operators applied to the Tribunal for an order imposing their rights under the Electronic Telecommunications Code (Code Rights) to allow them to retain a telecoms mast on the site.
If, however, the landowner could show it intended to redevelop the site and could not reasonably do so if the operators’ mast remained in situ, no order would be made by the Tribunal.
Here the landowner had both planning permission and the financial means to redevelop the site. Interestingly, his redevelopment plans involved installing his own telecoms mast, which he said would improve the broadband connectivity to his surrounding Estate.
The Tribunal concluded the landowner had to show a reasonable prospect of being able to carry out the redevelopment and a firm settled and unconditional intention to do so.
This followed the approach in the recently decided Supreme Court case of F Franses Ltd -v- Cavendish Hotel (London) Limited concerning a landlord opposing a grant of a renewal tenancy under the Landlord and Tenant Act 1954 on the ground of redevelopment. In that case the Court decided the “acid test” was whether the landlord would intend to do the same works irrespective of whether its tenant had a legal right to a new tenancy.
In the EE Limited case, the landowner ultimately failed to satisfy the Tribunal that its redevelopment plans were not contrived purely to prevent the operators’ acquisition of Code Rights. In particular, he was unable to persuade the Tribunal that his plans were viable or that the real purpose of the plan to install his own mast was better broadband.
This is a blow for landowners whose plans to redevelop will now face greater scrutiny. However it is very much in line with the overarching purpose of the Code - to facilitate operators to provide greater connectivity – some would say at the expense of landowners’ rights.