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Published 11 septiembre 2020
With this decision comes further guidance, though no real surprises, on a number of aspects of the not so new Code. Although, in this case, the decision went against the operator, the clarity it provides should provide useful guidance and help expedite negotiations for new agreements.
Any decision which helps increase the speed at which telecom sites can be rolled out should be welcomed.
UAL opposed the paragraph 20 notice on the basis that the test under paragraph 21 of the Code (the public benefit test) was not met. The test is as follows:
UAL could not use redevelopment to oppose the making of an order as it was not the party with the intention to redevelop the land. UAL submitted that the result of an order granting a code agreement to Cornerstone would be that it no longer had control and the ability to meet its contractual obligations with the developer. It would need to secure vacant possession of the Building and as a result of the workings of parts 5 and 6 of the Code it would not be able to do so by the required date.
In order to remove Cornerstone UAL would need to enter into stressful and expensive litigation and there would be a risk of not being able to meet its contractual obligation and being served with an injunction by the developer.
UAL was prepared to enter into a paragraph 26 agreement on the basis that part 5 of the Code would not apply however a paragraph 26 notice had not been served and Cornerstone was not seeking an agreement under that paragraph of the Code.
Cornerstone’s response was that UAL would still have time under parts 5 and 6 of the Code to remove them from the Building before they were contractually obliged to do so (even if it involved litigation) and the use of paragraph 26 of the Code was not appropriate here as it circumvented the security of the Code and was a way of contracting out, something which the lawmakers did not wish the parties to be able to do.
The Tribunal agreed with UAL and decided that;
This decision is the first to give guidance on the paragraph 21 test and the points to take from the outcome are as follows:
The Tribunal also considered the terms of the agreement (in the event that their decision was later determined to be incorrect on appeal) and provided very helpful commentary on a number of points in dispute. The decision makes it clear that these comments are obiter however they are a useful insight of the views of the Tribunal. A large amount of clauses were in dispute and the Tribunal commented on the level of hostility between the parties by calling it unseemly and unnecessary in which they treated each other as enemies. The approach taken by the Tribunal was to make pragmatic judgements based on evidence from the parties about the practical approach they would take when exercising the rights. A selection of the clauses are as follows:
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