Under the Electronic Communications Code 2017 (the ″Code″), operators can apply to the Upper Tribunal to exercise its discretion to grant interim rights, for example to carry out intrusive surveys. This is subject to the operator first serving a Code-compliant notice on a site provider.

The recent case of (1) EE Limited (2) Hutchison 3G UK Limited (the ″Operators″) and (1) 100 Nox SARL (the ″Site Provider″) highlights that, even if there is a validly served notice, the Tribunal may be reluctant to exercise its discretion if an operator has not made enough effort to ensure that the notice has reached a site provider.

In the case, the Operators wrote to the Site Provider, a registered Luxembourg entity, and then served notice under the Code. However, the Site Provider appeared to know nothing about the Operators’ application and failed to comply with the Tribunal directions or attend the hearing.

Judge Elizabeth Cooke refused the Operators’ application on the basis that there was no evidence that the Operators had made a real effort to contact the Site Provider. The Tribunal suggested that a ‘common sense’ approach should have been taken, for example visiting the property or making enquiries as to how the occupational tenants communicated with the Site Provider, their landlord, to ensure that the notice was brought to its attention.

The Tribunal also held, as a fundamental point, that in exercising its discretion, it could not perform the balancing exercise set out in the Code as it was not clear what the Operators’ ‘intrusive survey’ would involve. Operators need to be specific when setting out the scope for such a survey.

The decision is helpful for landowners, because it puts the onus clearly on the operators to ensure that  any requests for interim rights are brought to their attention, particularly when the request may result in intrusive works. Issuing Code notices is not simply a tick box exercise.