A recent case, PG Lewins Ltd v Hutchison 3G UK Ltd and EE Ltd, has offered some clarity on the inter-relationship between the Electronic Communications Code 1984 and site agreements negotiated between operators and individual landowners with the court appearing to support landowners in objecting to potential unfair use of the Code by operators.

In this particular situation the landowner, Lewins wanted the operators to move their equipment as part of a conversion from an office building into residential apartments, and entered into a detailed agreement providing for temporary relocation to scaffolding and back onto the rooftop on service of a notice.  When the time came Lewins served the agreed relocation notice but the operators claimed that they did not need to comply with it as the statutory process set out in paragraphs 20 and 21 of the Code had not been complied with.  Paragraph 20 allows owners to serve notices to require an alteration (defined as "moving, removal or replacement") of telecoms apparatus, and paragraph 21 can be relied on if the landowner wants to the apparatus removed.  As a result Lewins pursued the operators for damages for breach of the site agreement.

The Court ruled that Lewins was entitled to rely on the site agreement and did not have to follow the procedure set out in paragraphs 20 and 21, which should provide an additional statutory mechanism instead of overturning an existing agreement.  It was emphasised that the Code should not impact any provisions set out in the site agreement unless expressly forbidden by the Code.

As an aside the Court also found that paragraph 21 relating to removal did not apply to the relocation of apparatus, and that if they are in breach, an operator cannot claim to be acting lawfully under the Code.

Although a new version of the Code has since come into effect, this case will remain relevant for some time as the old Code continues to apply to apparatus installed under agreements before December 2017.

This case reflects an increasing trend to prevent operators from unfairly using the Code to their advantage or ‘hiding’ behind it.  Our experienced Commercial Property team are used to protecting landowner’s rights by negotiating site agreements.  Please do not hesitate to contact us on 0161 941 4000 or email us at lawyers@myerson.co.uk if we could help you.