EE Limited and Hutchison 3G UK Limited v Aviva Investors Ground Rent Holdco Limited and Aviva Investors Ground Rent GP Limited and others [2021] UKUT 57

WBD acted on behalf of EE and Three (the Operators) in a successful application to the Upper Tribunal (Lands Chamber) (the Tribunal) to obtain rights under the Electronic Communications Code (the Code) over a rooftop site in Central London.

The Operators agreed to move from a nearby site to facilitate a redevelopment by the building owner and needed a temporary replacement until a new permanent site could be found to ensure there was no impact on their respective 3G and 4G services. They sought rights under the Code over the rooftop of 24 Leonard Street, a residential block of apartments owned on a long lease by Aviva. Following unsuccessful attempts to negotiate, the Operators initially served a notice on Aviva under paragraph 26 of the Code seeking interim rights to install apparatus on the roof of the block. Agreement was not reached on a consensual basis, so the Operators then made an application to the Tribunal for interim rights under paragraph 26 of the Code. Aviva opposed the application on grounds of privacy, structural concerns and that the public benefit test under paragraph 21 of the Code had not been satisfied.

Case management hearing

The Tribunal has the power to impose interim rights at a case management hearing (CMH). However the Tribunal was not willing to exercise its discretion to do so, nor to make an order which would also bind the top floor penthouse owners directly impacted by the installation works without them also being given the opportunity to make representations at a substantive hearing. The Tribunal also raised concerns that, in the limited time available at the CMH, it could not fully consider whether the public benefit test for the imposition of interim rights under paragraph 26 (a good arguable case) would be met.

Substantive hearing

Taking on board the Tribunal's comment at the CMH, the Operators then served further notices and made further references under both paragraphs 20 and 26 against Aviva, the freehold owner and the residents of the penthouse apartments. Following the provision of expert evidence by the Operators in respect of structural viability and also to demonstrate the Operators’ need for the replacement site in terms of the coverage and capacity loss from the existing site, Aviva withdrew their objections and the parties agreed terms for an agreement to be imposed under paragraph 26. The freeholder agreed to be bound by the Code rights and the penthouse residents did not formally object to the installation. On the evidence provided, the Tribunal was satisfied that the public benefit test had been met and imposed an agreement under paragraph 26 of the Code.

A link to the Tribunal's decision can be found here.