Easements, covenants and other third party rights

Successful land owner in Electronic Communications Code 2017 application awarded only a fraction of its costs (Upper Tribunal)

The Upper Tribunal (Lands Chamber) has decided that a freeholder and tenant who were successful in relation to a telecommunications operator’s application under the Electronic Communications Code 2017 would only receive £5,000 each from the operator towards their costs.

The underlying dispute related to the operator (C) seeking to exercise its right to access a property to carry out a survey as to its suitability as a replacement site for communications equipment. The freeholder and the tenant of the building (a housing association) were concerned about the broad terms on which access was sought and the level of an indemnity C was to give. The underlying dispute was resolved, but the freeholder and tenant sought payment of the costs they had incurred in relation to it.

Martin Rodger QC, the Deputy Chamber President, was critical of the way in which the parties had conducted the matter, including the level of costs that had been incurred, which exceeded £100,000 in total. He ordered that the operator pay the freeholder and the tenant £5,000 each towards their costs, far less than what they had expended.

The case illustrates that parties who dispute the exercise of Code rights should try to be reasonable and that unnecessarily wide requests from operators, and excessively obstructive behaviour by land owners, may have adverse cost consequences.

If you would like any more information in relation to this article then please feel free to contact me via email: david.stancliffe@bowlinglaw.co.uk or visit my profile.

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