The court has made what is being hailed as a landmark decision regarding ‘lift and shift’ provisions in agreements between telecoms operators’ and landowners under the Electronic Communications Code (sch.2 Telecommunications Act 1984) (“the Old Code”).
Under the Old Code, landowners can serve notice on an operator requiring them to relocate their equipment whilst development works are undertaken on the land. The operator then has 28 days in which to serve a counter-notice which, if served validly, means that the relocation can only be enforced by means of a court order.
Operators have long relied upon the perceived protection of the Old Code to delay the relocation process. However, this has been called into question in the recent case of PG Lewins Limited v Hutchison 3G UK Limited and EE Limited (“PG Lewins”).
In PG Lewins the landowner was developing an old office block into apartments. The operator entered into a contractual agreement under the Old Code in which they agreed to temporarily relocate their apparatus in various stages onto scaffolding, after which it would be relocated on to the new roof structure. Stages of this relocation were delayed by the operator and the landowner brought a claim for an injunction and damages on the basis of the operator’s breach of contract.
Whilst the operators expedited the relocation and the injunction application was settled, the landowner continued to pursue the damages claim. The operator sought to rely on the provisions of the Old Code as a defence to the claim, arguing that the landowner was seeking to circumvent the notice procedure as set out in the Old Code.
The court held that the operator’s statutory powers did not provide immunity against a breach of contract claim. As per para.2(5) of the Old Code, it was the telecoms agreement between the parties that conferred the terms of the Old Code and according to para.27(2), the exercise of Code rights is not to inhibit any rights or limitations arising under any agreements that the Operator is party to. Therefore, the court held that the contractual agreement between the parties took precedence.
This newly confirmed supremacy of the contractual agreement between the parties is preserved in the new legislation (The New Telecommunications Code which applies to agreements entered into on or after the 28 December 2017). Operators should therefore not hide behind their statutory powers and need to ensure compliance with their contractual obligations.