What does the recent EE Tribunal decision mean for landowners?

While the Upper Tribunal provided guidance on how compensation will be determined when renewing code agreements, the judgment emphasised how little compensation site providers will generally receive.

In addition, the government remains set on progressing 5G rollout as quickly and as extensively as possible. It is anticipated that part two of the Product Security and Telecommunications Infrastructure Bill, which is moving through Parliament, will further modify the code. Modifications include further alignment of the procedures for renewing agreements with those for imposing new agreements, and a procedure for enabling operators to obtain code rights over certain types of land quickly, where a site provider does not respond.

Given the continuing shift in power towards operators, many site providers will be concerned to understand the Upper Tribunal’s powers both to impose new agreements and terminate existing ones. This is a complex area, in part because the procedures and requirements vary depending on the nature of any existing rights held by an operator, and it is evolving as more judgments are issued.

Code rights can be granted by agreement or imposed by court order, but if a site provider wishes to resist an operator, the site provider’s options are limited. In brief, unless a site provider can make out a sufficient intent to redevelop, the court will impose an agreement if satisfied that: a) the public benefit would outweigh the prejudice suffered by the landowner; and b) the prejudice can be adequately compensated by money.

If an operator is already in situ, the site provider may also rely on any persistent failures to pay rent or substantial breaches of an operator’s obligations in order to oppose a renewal. It is, therefore, key for site providers to plan carefully, treat approaches from operators with caution and take advice at an early stage.

Richard Housley is legal director at Cripps Pemberton Greenish