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Electronic Communication Code: Tribunal clarifies its jurisdiction

Claims for compensation made under the old Electronic Communications Code (ECC) in the UK cannot be brought before a tribunal tasked with resolving disputes under the new ECC, the tribunal has confirmed.06 Nov 2018

The Lands Chamber of the Upper Tribunal clarified its jurisdiction to hear ECC cases in a ruling on 31 October. It said the case it was ruling on was referred to it since the new ECC came into force in late 2017.

The ECC governs the relationships between landowners and operators of electronic communications services licensed by Ofcom. It gives operators certain rights to install, inspect and maintain electronic communications apparatus including masts, cables and other equipment on public and private land, even where the operator cannot agree the necessary rights with the landowner.

In the ruling, the Upper Tribunal determined that it did not have the right to hear a claim for compensation brought by Elite Embroidery, a factory owner in Newcastle, against Telewest, a telecoms company owned by Virgin Media.

In 2016, Elite Embroidery discovered a cable under the surface of land it had bought to erect a new factory and offices. The cable belonged to Telewest and "had probably" been laid by the company in the mid-1990s when the land was owned by Newcastle City Council, according to the ruling.

Elite Embroidery claimed that the cable had not been laid in the correct position and that it should be reimbursed for the cost of redesigning its construction works and for losing out on government grants that it said it had missed out on because of delays in the works. The value of Elite Embroidery's claim was nearly £250,000.

Elite Embroidery said that its claim was to be considered under the new ECC, but the Upper Tribunal declined to hear the case on the basis that the company had not claimed that Telewest had "exercised any rights under the new Code".

Under the Electronic Communications Code Jurisdiction Regulations 2017, disputes under the new ECC in England and Wales can only be heard by either the Upper Tribunal or by the First-Tier Tribunal, and in the case of compensation claims it is only the Upper Tribunal that can hear such cases.

In his ruling, Martin Rodger QC, deputy Chamber president, highlighted wording in a schedule of the Digital Economy Act, the primary legislation under which the new ECC was developed, which confirms that the Upper Tribunal has no jurisdiction to hear compensations claims raised in respect of rights under the old ECC.

"It follows that (so far as compensation is concerned) rather than rights under the old Code being replaced by rights under the new Code, the repeal of the old Code is without prejudice to any accrued right to compensation under it," Rodger said. "This Tribunal has not been given jurisdiction to entertain such a claim."

"In those circumstances I conclude that the Tribunal has no jurisdiction in this reference. The claim itself appears to be a viable claim for damages for trespass or nuisance or for compensation under the old Code, but if so, it must be pursued elsewhere. I therefore have no alternative but to strike out the reference …" he said.

Property dispute resolution specialist James Lilley of Pinsent Masons, the law firm behind Out-Law.com, said: "Since the new Electronic Communications Code came into force in December 2017, all eyes have been on the Lands Chamber of the Upper Tribunal. This case, however, is a helpful reminder that the Upper Tribunal is not necessarily the appropriate venue for all disputes relating to telecommunications apparatus."

"The transitional provisions relating to installations and rights which pre-date 28 December 2017 are complex and, as is demonstrated here, site providers and operators need to give careful thought to the basis upon which claims are brought and the appropriate venue for hearing those arguments," he said.

Pierre Smith, also of Pinsent Masons, said that while the ruling provided clarity on some aspects of the new ECC, it is likely to be just the "prologue" to "many further chapters" in telecoms and property litigation as "the industry gets on with the job of delivering the government’s vision for Britain’s digital future" in 2019.

The Digital Economy Act introduced a new ECC, effective from 28 December 2017 and intended to support the government's vision for the UK's digital future. The new Code is complemented by an Ofcom Code of Practice which governs how operators and landowners should interact with one another over the installation, maintenance and upgrade of electronic communications infrastructure and encourages a collaborative approach between the parties.

The new Code is aimed at boosting digital coverage and connectivity across the UK, through a package of measures which the government expects will deliver significant cost reductions to the telecoms sector while ensuring that landowners receive fair payment for the use of their land. Among other measures, the new Code restricts the ability of landowners to charge premium prices for the use of their land by basing rent rates on the underlying value of the land. It also makes it easier for operators to upgrade and share equipment such as masts or cables without having to pay landowners extra.