The Lands Tribunal for Scotland has recently published its third decision under the new Electronic Communications Code (ECC), relating to the grant of interim rights under Paragraph 26 of the ECC.

The Tribunal’s latest Opinion follows a debate in Arqiva Limited v Kingsbeck Limited LTS/ECC/2019/005, which was dealt with by way of written submissions in light of the current coronavirus lockdown.

The Application was made by Arqiva for the grant of interim Code rights under the ECC from its landlord and the owner of the site, Kingsbeck, to enable two of Arqiva’s site sharers, EE and Cornerstone, to upgrade their equipment.

There were several challenges raised by Kingsbeck as to the competency and relevancy of the Application. What were probably the most interesting were those challenges dealing with the interpretation of the ECC and how it should apply in Arqiva’s circumstances. We take a look at the Tribunal’s discussion of these below.

1.  Applications for the grant of ECC Rights on behalf of Sharers

One of the questions raised by Kingsbeck – and the one that gave the Tribunal the most difficulty – was whether or not Arqiva could make an Application on behalf of its sharers to upgrade an existing site.

The Tribunal ultimately decided the answer to this question was yes.

In the first place, it was satisfied Arqiva still had title and interest to make the Application, given the degree of control and input that Arqiva still had in respect of the equipment on site (even though not all of the apparatus on site belonged to Arqiva).

In the second place, the Tribunal looked at Arqiva’s ability to seek Code rights for its sharers to upgrade the equipment and decided that the ECC allowed this. Its line of reasoning examined several paragraphs in the ECC, summarised as follows:

• The ECC does not expressly preclude the grant of Code rights listed in paragraph 3 from being exercised by third parties.
• With reference to the “statutory purposes” for which Code rights can be granted, the Code rights sought by Arqiva fell into Paragraph 4(b), e. for “the purposes of providing an infrastructure system”.
• Paragraph 7 of the ECC defines an “infrastructure system” as one which is provided for use by operators for the purpose of providing their networks. “Provision” in this context includes establishing or maintaining the infrastructure system. The Tribunal used a purposive interpretation to apply a broader meaning to paragraph 7, so that Arqiva’s ability to seek Code rights for establishing or maintaining and infrastructure system” for its sharers also included upgrading it.

2.  Stand-Alone Applications under Paragraph 26

In response to another of Kingsbeck’s challenges, the Tribunal also confirmed it was competent for Ariqva to make a stand-alone application for interim rights under Paragraph 26 of the ECC, i.e. unaccompanied by an application for permanent rights under Paragraph 20.

This is not surprising as the same approach has previously been confirmed in English cases such as The University of London –v- Cornerstone Telecommunications Infrastructure Ltd [2019] EWCA Civ 2075. This dealt with the rights of operators to take temporary access to assess the suitability of land for the installation of electronic communications apparatus.

What is notable though is that the Tribunal’s decision now confirms the same approach will be applied in Scotland, not just for access rights but for interim rights to install and upgrade apparatus as well.

Interestingly, the Tribunal was not asked to look at whether making an application under paragraph 26 of the ECC was competent in situations where there was already an electronic communications site in place and an occupier in situ. This has been the subject of some debate south of the border, with cases such as Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755 which reached the Court of Appeal last year. It would have been valuable to have Scottish guidance on this in the present Application, had there been room for such a challenge to be made.

We will no doubt see more ECC guidance being released in the near future though, with more ECC Applications being raised against the background of an increasing push to roll out 5G coverage and connectivity across Scotland.

In the meantime, this decision a useful indicator that the Tribunal continues to be willing to take account of the precedents being set in England and Wales to assist with ECC applications in Scotland. Just like the Upper Tribunal (Lands Chamber), the Lands Tribunal for Scotland is also willing to interpret the ECC in a way that achieves consistency with its underlying purpose, rooted in the Government’s vision for a digital future and roll out of electronic communications infrastructure across the UK.

A full copy of the Tribunal’s Opinion can be found on its website, accessible here.