Crawley Borough Council v EE Limited and Hutchinson 3G Limited

Where a code right to keep electronic communications apparatus on land has ended, the landowner has a right to require its removal. Once that right has accrued, the Tribunal has no general discretion to stay or refuse an enforcement order. The Code prescribes no additional conditions, list of factors or public interest test for an order under paragraph 44. The Tribunal’s discretion concerns the period specified for removal. A reasonable removal date may accommodate practical arrangements, including relocation of the apparatus, but it does not suspend the landowner’s accrued right.

The respondents operated a telecommunications site under a lease protected by the Landlord and Tenant Act 1954. The lease expired after the respondents had failed to commence proceedings for a new tenancy. The claimant relied on paragraph 37(3)(d) of the Electronic Communications Code and applied under paragraph 40 of Schedule 3A to the Communications Act 2003 for removal of the apparatus under paragraph 44.

The respondents accepted that the removal condition was satisfied but sought a stay pending possible agreement concerning a neighbouring site or the Supreme Court’s decision in related proceedings. The central issue was whether the Tribunal had discretion to stay the reference or decline to order removal.

1. Removal right. Paragraph 37 conferred on the claimant a right to require removal because the code right granted by the pre-Code lease had come to an end and paragraph 37(3)(d) was satisfied.
2. No general discretion to stay. The Tribunal held that there were no conditions precedent to an order under paragraph 44 beyond the accrual of the paragraph 37 right. The Code contained no list of considerations and no public interest test. Staying the reference because continued operation was commercially or practically difficult would therefore go beyond the Code.
3. Effect of existing authority. The respondents’ inability to acquire new rights over the existing site while remaining in occupation followed from Cornerstone Telecommunications Infrastructure Limited v Compton Beauchamp Estates Limited [2019] EWCA Civ 1755 and Cornerstone Telecommunications Infrastructure v Ashloch Ltd [2021] EWCA Civ 90.
4. Date for compliance. Although the removal order had to be made, the Tribunal could specify an appropriate period for compliance. In the circumstances, removal by 13 December 2022 allowed time for the parties to resolve the position or pursue arrangements concerning the neighbouring site.
5. The respondents were ordered to remove the apparatus by 13 December 2022. Compensation was reserved for determination on written submissions if not agreed.

Not stated in the judgment. The decision carried a right of appeal to the Court of Appeal on a point of law, with permission.