A landmark decision has been made in the High Court which means that telecoms operators cannot hide behind the Electronic Communications Code (the Old Code) to prevent landowners from claiming damages if the operators fail to comply with their contractual obligations.
The recently settled case of PG Lewins Limited v (1) Hutchison 3G UK Limited and (2) EE Limited, centred around a developer converting an office building into residential apartments, which required the operators’ equipment to be relocated temporarily onto scaffolding and then returned to a new permanent position on the roof.
In good faith, the parties entered into a detailed contractual arrangement, whereby the Operators agreed to relocate their equipment in stages. The initial relocation to temporary scaffolding was completed problem free. However, the subsequent relocations were delayed and the Claimant complained that the Operators were in breach of contract and had caused them loss.
The Operators expedited the works and the injunction application was settled amicably. But the Operators disputed that they were in breach of contract or liable in damages because, amongst other things, the Old Code provided complete immunity. This issue was determined as a preliminary issue.
Recorder Sharp QC determined that an operator is not automatically exonerated from a breach of contract as a consequence of its statutory powers.
National law firm Clarke Willmott LLP was instructed on behalf of the Claimant, which has a specialist telecoms team who act solely for landowners.
Kary Withers and Aimee Davies of Clarke Willmott LLP and Tim Calland of Maitland Chambers represented the Claimant.
Kary Withers, Clarke Willmott Partner and specialist in property litigation, said: “The difficulty with this case was that there is an ‘Old Code’ and a ‘New Code’ for electronics communications. Despite the repeal of the Old Code and introduction of the New Code on 28 December 2017, the principles established in this case survive the change in legislation.
“The supremacy of the contractual agreement conferring the Code rights is preserved in the new legislation and means that telecoms operators will need to be more careful to ensure its contractual obligations are complied with, like any other commercial entity.
“It is hoped that landowners and telecoms operators will continue to work together collaboratively under the New Code regime so as not to prevent or hinder landowners carrying out development.”
(Source: Clarke Willmott LLP)
