Do you object? Neighbouring telecoms apparatus and what Cox v EE Limited and Hutchison 3G UK Limited means for operators, landowners and developers

The First-Tier Tribunal’s decision in Cox v EE Limited and Hutchison 3G UK Limited is the first reported decision on the right to object under Part 12 of the Electronic Communications Code (the “Code”). It provides a useful reminder that landowners and developers are not without remedies where neighbouring telecoms apparatus adversely affects their property. 

What was the dispute about? 

The case concerned a 20-metre monopole and associated cabinets installed on council-owned land at Osborne Road Recreation Ground, approximately 25 to 30 metres from the applicant’s freehold property. 

Part 12 of the Code allows a person who occupies, or has an interest in, neighbouring land to object to telecoms apparatus where its proximity is capable of prejudicing their enjoyment of, or interest in, that land.

The Code contains two objection procedures, depending on whether the objection is made within the first 12 months following installation of the apparatus or after that period. In both cases, the process begins with service of an objection notice on the operator, followed (if the matter is not resolved) by an application to the Tribunal. 

This case concerned the first procedure, as the objection was made within 12 months of installation. Under that regime, the Tribunal must uphold an objection where the apparatus materially prejudices the objector's enjoyment of, or interest in, their land, unless the Tribunal is satisfied that the only possible alternatives would have an unacceptable impact on the operator's network, involve substantial additional expenditure, or simply transfer an equivalent problem to another landowner. The test seeks to strike a balance between protecting neighbouring landowners and operator’s networks.

The applicant argued that the mast harmed the outlook, amenity and value of her property because of its height, siting and lack of screening. Reliance was also placed on planning matters, corroborative evidence as to purchaser behaviour and a restrictive covenant. Although the Tribunal accepted that the property constituted "neighbouring land" for the purposes of the Code, it ultimately dismissed the objection. The applicant failed to establish that the apparatus materially prejudiced her enjoyment of, or interest in, the property. As a result, the Tribunal did not need to consider the second limb of the statutory test. 

Had the objection succeeded, the Tribunal would have had power to order the alteration of the apparatus (which may include moving, removing or replacing the apparatus) or authorise installation of apparatus in a specified manner and position.

Why does the decision matter?

The case is a useful reminder that the Part 12 objection procedure exists and may, in appropriate circumstances, provide a route for landowners and developers to seek changes to neighbouring telecoms apparatus. 

Importantly, the Tribunal confirmed that "neighbouring land" is not confined to land immediately adjoining the telecoms site. In this case, the applicant's property was approximately 25 to 30 metres away from the apparatus. The decision therefore suggests that landowners do not need to share a boundary with a telecoms site before considering whether an objection may be available.

At the same time, the Tribunal emphasised the limits of the regime. It reaffirmed that there is no common law right to a view and observed that questions of visual impact are primarily matters for the planning system. Aesthetic concerns alone are therefore unlikely to be sufficient to support a successful objection.

Evidence is likely to be decisive

Perhaps the most significant practical lesson from Cox is the importance of evidence.

The Tribunal noted that the property remained capable of occupation as a dwelling, there had been no complaints from tenants, rental income had not been adversely affected and there was insufficient evidence that the apparatus had impacted value. No expert valuation evidence was provided and the material relied upon in relation to health concerns was not accepted as expert evidence.

The wider message is clear: applicants are likely to require robust evidence demonstrating genuine prejudice to their enjoyment of, or interest in, the property. Evidence relating to value, marketability, use or occupation is likely to carry considerably more weight than visual objections alone, subject to the particular facts, nature and circumstances of the objection.

Practical implications

Cox does not open the floodgates to objections against neighbouring telecoms apparatus. On the facts, the objection failed.

However, the decision confirms that the Part 12 regime is a potentially valuable tool for landowners and developers affected by nearby telecoms apparatus, even where the apparatus is not immediately adjacent to their land or indeed where, in the case of a developer, the prejudice may be tied to future plans to redevelop their land. It also highlights the importance of identifying potential issues early and carefully assessing whether there is evidence of genuine material prejudice before embarking on an objection.

We understand that the applicant has not sought permission to appeal this decision to the Upper Tribunal (Lands Chamber). 

This article was written by Chris Preston, Perry Swanson and Ella Perrett.

Read the full decision here.

The Part 12 regime is a potentially valuable tool for landowners and developers affected by nearby telecoms apparatus, even where the apparatus is not immediately adjacent to their land.