APPEAL BY (1) EE LTD and (2) HUTCHISON 3G UK LTD AGAINST JOHN STEWART DUNCAN [2021] ScotCS CSIH_27 (07 May 2021)

APPEAL BY (1) EE LTD and (2) HUTCHISON 3G UK LTD AGAINST JOHN STEWART DUNCAN [2021] ScotCS CSIH_27 (07 May 2021)

The tribunal erred in requiring operators to demonstrate a specific business or technical need beyond the minimum rights mandated by the new code. The phrase 'business and technical needs' in paragraph 34(13) includes the generic benefits Parliament intended for operators, such as sharing, upgrading, and 'no scheme' valuation. The notice requirements under paragraph 33(3) are satisfied if the specified date is after the first time the agreement could have been terminated, and a lease continued by tacit relocation remains a written agreement for the purposes of the Code.

Citation
[2021] ScotCS CSIH_27
Parties
Appellant: EE Limited; Appellant: Hutchison 3G UK Limited; Respondent: John Stewart Duncan
Jurisdiction
Scotland
Judgment Date
07 May 2021
Procedural Posture
Appeal / Decision on Appeal From Lands Tribunal for Scotland
Outcome
Appeal allowed; cross-appeal refused; tribunal's decision quashed; matter remitted to tribunal for further procedure.
Legal Topics
Electronic Communications Code, Lease Renewal, Transitional Provisions, Tacit Relocation, Statutory Interpretation
Telecommunications Law Property Law Landlord and Tenant Law Electronic Communications Code Lease Renewal Transitional Provisions Tacit Relocation Statutory Interpretation

Case Brief

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Parties

EE Limited

Appellant

Hutchison 3G UK Limited

Appellant

John Stewart Duncan

Respondent

Procedural Posture

Appeal / Decision on Appeal From Lands Tribunal for Scotland

Legal Issues

  1. 1 Proper approach to paragraph 33(14) and 34(13) of the Electronic Communications Code regarding replacement of subsisting agreements
  2. 2 Whether operators must demonstrate specific business or technical need to replace old code agreements with new code agreements
  3. 3 Validity of notice under paragraph 33(3) when lease continues by tacit relocation

Ratio Decidendi

The tribunal erred in requiring operators to demonstrate a specific business or technical need beyond the minimum rights mandated by the new code. The phrase 'business and technical needs' in paragraph 34(13) includes the generic benefits Parliament intended for operators, such as sharing, upgrading, and 'no scheme' valuation. The notice requirements under paragraph 33(3) are satisfied if the specified date is after the first time the agreement could have been terminated, and a lease continued by tacit relocation remains a written agreement for the purposes of the Code.

Court Disposition

Appeal allowed; cross-appeal refused; tribunal's decision quashed; matter remitted to tribunal for further procedure.

Orders

  • Quash the tribunal's decision to dismiss the application as irrelevant.
  • Remit the matter to the tribunal for further procedure in accordance with the appellate court's guidance.