Telecoms operators should investigate before raising proceedings against landowners
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Applicants for rights over land under the Electronic Communications Code should investigate who occupies the land before raising proceedings, otherwise they risk causing unnecessary expense by directing the proceedings against the wrong party, the Lands Tribunal for Scotland held on 20 November in NEOS Networks Ltd v Sandra Wilson and Alison Rhind, LTS/ECC/2023/0055.
NEOS applied to the tribunal for an order against the respondents imposing rights to install apparatus over their land. The code in the Communications Act 2003 required the application to seek the imposition of the rights on the occupier. The land was not occupied by the respondents but by a tenant. NEOS subsequently secured the tenant’s agreement to grant the rights, allowing the application to be dismissed. NEOS moved for the expenses to be awarded against the respondents, including sanction for senior counsel for the first hearing on 11 December 2023. The tribunal refused the operator’s motion, and granted the respondents’ motion for the expenses of two parts of the proceedings to be awarded against the operator.
At an early stage the respondent had intimated to the operator that the land was let and so the application required to be directed against the tenant. The tribunal held that
the applicant should bear the risk in these applications in identifying the correct party from whom rights can be obtained. … an applicant would not necessarily be aware of an occupier who has no recorded or registered interest in the land. … direct inquiries therefore have to be made about occupation in order to ascertain the position. … Such enquiry would sensibly be at an early stage and certainly before a formal application was raised. … We consider there was a failure on the part of the applicant to ask pertinent questions or make sufficient enquiries of the respondents around occupation.
The application had been intimated to the respondents on 8 November 2023 and the first hearing fixed for 11 December. On 27, 29 and 30 November and 6 and 7 December the respondents’ agents had told the applicant’s agents about the tenant and his identity, and suggested a sist or administrative continuation to allow the issue to be addressed. On 4 December the respondents had also lodged productions giving the tenant’s name and address.
The tribunal said:
With no response having been received, the respondents therefore had to make preparations for the hearing on 11 December 2023. … [This] resulted in substantive work being required on the part of the respondents ahead of and at the hearing … when matters could have been paused ahead of this. The applicant would be aware that this would put the respondents to expense. The applicant may have considered that the 11 December hearing was necessary in order to obtain the name of the tenant. However … the name of the tenant was provided to the applicant in the respondents’ solicitors email of 27 November 2023 … the applicant was on notice that the application in its lodged form would not be successful.
The operator had subsequently agreed to a six month sist, which had expired without it securing the tenant’s agreement, so further procedure and a hearing had been necessary. The tribunal said: “We agree with the respondents’ position: the six month period sought by the applicant … was sufficient time to secure an agreement from the occupier tenant and have the respondents bound by that agreement. The respondents’ willingness to negotiate to reach agreement had first been indicated by their solicitors’ email of 27 November 2023 and repeated on a number of subsequent occasions. … The respondents appear to have acted quickly in so being bound following execution of the agreement by the tenant. … where an application has been raised against a party when it is known that agreement properly should be reached with another, some proper coordination of the communications between the applicant and the tenant on the one part and between the applicant and the respondents on the other part is a necessary part of the process. … it was reasonable … to expect that this should have been properly managed by the applicant within the sist time period” so as to avoid the need for further procedure after that.
The applicant was represented by David Thomson KC and Neale Tosh, advocate, instructed by Burness Paull LLP; the respondents were represented by Michael Upton, advocate, instructed by Shepherd & Wedderburn LLP.
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