Detail and discretionary interpretation

The Lands Tribunal’s First Ruling on Electronic Communications Code Notices sets the standards for validity

The Lands Tribunal for Scotland has handed down the first judgment in the UK on the requirements to validly serve a notice to bring an agreement to an end under the Electronic Communications Code. This decision demonstrates not only the attention to detail that must be adhered to, but also the discretionary interpretation open to the judiciary when making decisions on the Code.

On the 15th May 2024, the Lands Tribunal handed down its opinion in the ongoing action between EE Limited and Hutchison 3G UK Limited against Alloa Football and Athletic Club Limited. This followed a debate in late April with David Thomson KC representing the applicants and Michael Upton, Advocate, and Dallas McMillan Solicitors representing the respondent.

In short, this dispute revolves around a telecommunications site at Alloa’s football ground that was originally leased to EE Limited, then known as One 2 One Personal Communications. Alloa has a long-term plan for significant developments at the north side of its stadium, which is infringed by the positioning of the site. A notice of termination of lease was served on the telecom site operators. In June 2023, this notice was served on EE as the leaseholder, but also on Hutchison 3G, who had been given rights to share the site by EE.

The applicants took issue with the Code notice served on them, arguing that it was both incorrect and invalid due to it being served on Hutchison 3G, who were not a party to the lease, as it referred to the lease as “with you, EE Limited & Hutchison 3G UK Limited”.

Both parties placed significant importance on the wording and interpretation of the Code as set out in Schedule 3A of the Communications Act 2003, which is aimed at enabling the installation and upkeep of communications networks across the UK, as well as the requirements for bringing an agreement to an end.

Specifically, Paragraph 31 of Schedule 3A states: “A site provider who is a party to a code agreement may bring the agreement to an end by giving a notice in accordance with this paragraph to the operator who is a party to the agreement.” It also provides that notices must comply with Paragraph 89, which states: “If OFCOM have prescribed the form of a notice given under the provision in question by a person other than an operator, the notice must be in that form” and when not in this prescribed form, it “is not a valid notice for the purposes of this code”.

Many cases were referred to by both parties when arguing whether or not the notice was valid in line with the statutory requirements of Paragraphs 31 and 89. The Tribunal focused on Hoe International Ltd v Anderson [2017] CSIH 9 at Paragraph 41 and Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 at 776B-D.

In Hoe, the Inner House of the Court of Session stated “the problem with a highly formal approach is that any failure, even that of a minor nature, to conform to the strict contractual requirements will result in the notice being ineffectual” and that “a Court should be slow to adopt an especially strict approach to contractual requirements governing the sending of notices”.

Similarly, in Mannai, Lord Hoffmann drew attention to the example of a situation where a notice ought to have been printed on blue paper when it was in fact printed on pink paper. He stated that, despite the colour of the paper it was on, “The notice clearly and unambiguously communicated the required message.” Lord Hoffmann’s opinion demonstrates that a notice is highly unlikely to be deemed invalid and a failure if a very minor requirement is not followed.

In their decision in the present case, Mr R A Smith KC and Mr C C Marwick FRICS concluded that the notice served on both applicants in June 2023 was valid, placing weight on the two decisions above. For EE, the notice was addressed, sent and delivered into the hands of a person with the authority to act. It was therefore validly served as EE were aware that they are the leaseholders of the mast site. Thus, the error was not a fundamental one, and did not prejudice EE.

The significant increase in the use of telecom masts in recent years means that litigation involving lease disputes is becoming increasingly common. Every case will of course be dealt with on its own merits, however there is now a growing body of authority that is of great assistance when disputes of this nature arise.

Written by Daniel Leyden (and David Hutchison) at Dallas McMillan.