New Scottish Lands Tribunal Procedure in Electronic Communications Code Applications

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New Scottish Lands Tribunal Procedure in Electronic Communications Code Applications

Published 12 February 2020

The Lands Tribunal for Scotland has recently published its first Guidance Note for claims made under the new Electronic Communications Code, forming Schedule 3A of the Communications Act 2003 (as amended) (the “ECC”).

The Note has been issued in response to the number of Applications that have started coming through the Tribunal’s doors since the ECC came into force in December 2017, and in light of the six month statutory deadline for determination of certain types of ECC Applications that the Tribunal should adhere to1.

  1. Procedural Timetable

    One of the most notable points coming out of the Guidance Note is the introduction of a default preliminary timetable for all ECC Applications, in addition to the usual Tribunal rules. This timetable is designed to trigger as soon as the Respondent has been notified that an Application has been made.

    In particular, a preliminary hearing to decide on how best to procedurally deal with each case (to be known as a “First Hearing”) will now be fixed around six weeks after notice of the Application has been given to the Respondent. The Respondent will also have 21 days to lodge Answers, and parties will then have the remaining time before the date of the First Hearing to mutually adjust their pleadings. This mirrors the approach the Upper Tribunal has taken in England and Wales.

    Where interim or temporary ECC rights are being sought as part of any Application, these will now also be decided by the Tribunal at the First Hearing (assuming an earlier hearing has not already been fixed in cases of particular urgency).

  2. Pre-Action Discussions

    The Guidance Note reinforces the Tribunal’s strong preference for parties to make every effort to agree on terms, or at least narrow the terms in dispute, before proceedings are raised.

    Where parties have no choice but to resort to the Tribunal, they should set out their case as clearly and concisely as possible, “whilst avoiding prolixity and the pleading of law”. They are also encouraged to set out the terms they would seek in the event of an ECC agreement being imposed, and explain their reasoning behind any terms that are in dispute. 

The Guidance Note provides some welcome clarification on how ECC Applications are to be approached in Scotland, as well as bringing the procedural elements of ECC claims more in line with our English and Welsh neighbours in the Upper Tribunal (Lands Chamber).

It also shows that the Tribunal is looking more to decided cases in England and Wales for guidance on approaching claims under the ECC in Scotland. This gives operators and landowners involved with the ECC a good indicator that the precedents set south of the border so far will likely be followed in any Scottish Applications going forward.

It remains to be seen however if, by imposing a strict default timetable and given the sixth month statutory deadline, the Tribunals (both north and south of the border) have, at present, the capacity to deal with any significant volume of applications. It is hoped, in time, that we will see more interim ECC applications decided not just at the First Hearing but perhaps on the papers alone as process and procedure becomes more “business as usual”. This would certainly help facilitate and accelerate the deployment of sites in more rural areas where providing comprehensive connectivity has always been a significant challenge for mobile network operators.

A copy of the Guidance Note can be found on the Tribunal’s website, accessible here.

1The Electronic Communications and Wireless Telegraphy Regulations 2011

Authors

Chloe Postlethwaite

Chloe Postlethwaite

Glasgow

+44(0)141 223 7832

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