M&S loses appeal against imposed agreement for mobile phone mast on top of Edinburgh store

About this case:

• Citation:
  [2023] CSIH 24
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Dorrian

Marks and Spencer plc argued that it would be unjust to allow respondent Cornerstone Telecommunications Infrastructure Ltd to install equipment on their premises. It was argued that the Lands Tribunal had erred in stating that it had addressed all issues relating to exposure to electro-magnetic fields.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, along with Lord Turnbull and Lord Doherty. Upton, advocate, appeared for the appellants and Thomson KC and Massaro, advocate, for the respondent.

Not yet disclosed

The respondent had identified property owned and tenanted by the appellants at 59 & 60 Princes Street as a suitable place for the installation of communications apparatus. After the appellants declined to agree terms, in April 2021 the respondent applied to the Lands Tribunal for Scotland for an order under the Electronic Communications Code contained in Schedule 3A to the Communications Act 2003.

In resisting the application, the appellant maintained that the prejudice which it would suffer was open-ended, unknown, and unquantifiable and thus could not be adequately compensated by money. Nonetheless, the Tribunal concluded in July 2021 that there would be significant public benefit in the making of an order and compensation could be assessed on an adequate basis.

The respondent applied for a final order in early 2022. At that time the counsel for the appellant sought to have the Tribunal consider a further matter, namely that members of the appellant’s staff would be prohibited from accessing certain rooftop equipment within the Public Exclusion Zone around the mast. The Tribunal declined to consider this matter, indicating it had dealt with all exposure issues under International Commission on Non-Ionizing Radiation Protection guidelines in its opinion of July 2021.

It was the appellant’s position that, at the time the Tribunal made its 2021 decision, it had not yet been disclosed to the appellant that the PEZ would extend to areas in which their personnel would require to maintain refrigeration and other plant. Thus, a submission that staff were not Occasionally Exposed Workers could not have been considered by the Tribunal at that time, and the appellant ought to have been given an opportunity to address the implications of the drawings outlining the PEZ.

Entitled to decline

Lady Dorrian, delivering the opinion of the court, said of the PEZ issue: “We are satisfied that this issue was not raised by the appellant at the time of the original hearing. In submissions to the Tribunal the appellant indicated that access to certain equipment located on the roof would be required at all times, but there was at no stage a clear submission that the staff who would be engaged in doing so would not be OEWs and had to be viewed as members of the public.”

She continued: “The Tribunal required the respondent to furnish both OEZ and PEZ plans in Part 7 of the Agreement. The reason for doing so was plainly associated with the alleged risk to ordinary members of the public located in the adjacent hotel, and the associated reputational risk which might be posed for the appellant. It was not based on any assertion that members of the appellant’s staff were not, or would not be, OEWs and thus not allowed to enter the PEZ.”

Noting the respondent’s written submission that the occupational zone did not inhibit the appellant’s ability to place plant on the roof, Lady Dorrian said: “This submission was not contradicted anywhere by the appellant. It was pointed out that this supplementary submission had been received on the last day for lodging submissions, but it is inconceivable to us that had this truly been a matter at issue the appellant would not have sought to make it clear that this issue was not a matter of agreement. As it was the Tribunal proceeded, and was entitled to proceed, on the basis that the employees in question would be OEWs and that no issue arose regarding their access to the PEZ.”

She concluded: “In its opinion of 6 July 2021 the Tribunal duly decided all of the ICNIRP matters which had been put in issue. It was fully entitled to decline to entertain the new issue which the appellant sought to introduce belatedly. If it had agreed to permit the late raising of the new issue it is likely that the Tribunal would have had to hear further evidence and submissions, which would have delayed the making of an order. That would have been undesirable, firstly because of the Tribunal’s obligation to determine applications within 6 months of receipt, and secondly, because it would have penalised the respondent for the appellant’s failure.”

The appeal was therefore refused.