County court tackles 'long-standing controversy' over right to remove telecoms equipment, says expert

The decision tackled the "long-standing controversy" over whether a notice under paragraph 21 of the Electronic Communications Code could be served during the contractual term of a tenancy, according to telecoms and property law expert Alicia Foo of Pinsent Masons, the law firm behind Out-Law.com.

"Landlords will welcome clarity into what has been a long-standing area of debate among landlord and tenant law practitioners," said Foo, who was part of the team acting on behalf of Arqiva Services Ltd, the tenant involved in the dispute. "Until now, landlords have served notices under both paragraph 20 and paragraph 21 of the Code during the contractual term of the tenancy, without prejudice to the other."

"Indeed, that was what happened in this case: landlord Crest Nicholson served both a paragraph 20 notice, requiring alteration of the equipment and ultimate removal due to redevelopment, and a paragraph 21 notice, requiring its removal. The deputy district court judge found that on a proper construction of the Code, there was no right to request removal until contractual expiry of the tenancy, despite the landlord's contentions that it could do so following the service of a notice seeking possession under section 30(1)(f) – the redevelopment ground – of the Landlord and Tenant Act 1954," she said.

Crest Nicholson has indicated that it intends to appeal the decision, despite the deputy district judge finding that it had "no chance of success".

The Electronic Communications Code ('the Code') governs the relationships between landowners and providers of electronic communications services licensed by Ofcom. It gives providers certain rights to install, inspect and maintain electronic communications apparatus including masts, cables and other equipment on public and private land, even where the provider cannot agree the necessary rights with the landowner.

Paragraphs 20 and 21 of the Code give landowners the right to require removal of electronic communications equipment once installed, but in different circumstances. Paragraph 20 covers the right to require "alteration" of the equipment, which can include its removal, but can only be used where the alteration is necessary to enable the landowner to carry out an improvement of the land such as redevelopment. Paragraph 21 covers the right to require removal, but only if the person giving the notice is "entitled" to do so.

In the case in dispute, Crest Nicholson had issued notices to Arqiva under both paragraphs 20 and 21 of the Code as well as serving a hostile notice seeking possession under the redevelopment ground of the 1954 Landlord and Tenant Act. The hostile notice terminated Arqiva's business tenancy in October 2015, on or about the contractual expiry of the tenancy. The landowner argued that it was entitled to serve a paragraph 21 notice, even though Arqiva was currently a tenant, because it had already given notice to terminate the company's tenancy under the Landlord and Tenant Act. Arqiva and two other companies that had been served paragraph 20 and 21 notices, EE and H3G, applied to have the paragraph 21 notice struck out as Arqiva's tenancy was not due to end until October 2015.

Paragraph 21 restricts the right of a landowner to require removal of electronic communications equipment in circumstances where the landowner "is for the time being entitled" to do so to the manner set out in the Code. In his ruling, the deputy district judge said that this wording implied that the landowner "must have a current entitlement 'for the time being'". This distinguished it from a paragraph 20 notice, which could be served at any time, he said.

The deputy district judge's view was that there was no "present right to determine" Arqiva's lease as it was still continuing, and would not expire until October 2015 or later, subject to notice under section 25 of the Landlord and Tenant Act which could extend the lease by a further three months and 21 days. He ruled that generally, where there is a lease, one could not service a paragraph 21 notice before the end of that lease.

The UK government has proposed changes to the Electronic Communications Code which it has said will improve consumers' access to digital services whilst recognising landowners' interests. The proposals would introduce a wholly-new procedure for a landowner to require the removal of electronic communications equipment which could make it more difficult for providers to resist the removal of their equipment. A consultation on the plans closed at the end of last month.