First-tier Tribunal Imposes Agreement for Rights Without Hearing

OUTCOME: Allowed

1

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER

(RESIDENTIAL PROPERTY)

Case Reference

: BIR/00CN/EIA/2026/0062

Property

: Unregistered land known as land lying to the west of [NAME], [ADDRESS], [NAME], [POSTCODE]

Claimant : [redacted] (Operator) [COMPANY] : [COUNSEL] LLP

Respondent

: [redacted] (Site Provider)

Representative : [Unrepresented]

Application : IN THE MATTER OF AN APPLICATION UNDER SCHEDULE 3A OF THE COMMUNICATIONS ACT 2003 The Electronic Communications Code

Date of Notice : 26th June 2026

NOTICE AND ORDER

A REFERENCE under Schedule 3A of the Communications Act 2003 was received by the Tribunal on 10th March 2026 including an application for an order imposing an agreement for rights under the Electronic Communications Code (termed “the Code” below).

The reference is one to which regulation 3(2), Electronic Communications and Wireless Telegraphy Regulations 2011 applies and must be determined by 9th September 2026.

2

The Tribunal having read: (i) the hearing bundle for 25th June 2026; including in particular (ii) the Application including the Applicant’s Statement of Case; and, (iii) the witness statement of [NAME] dated 20th April 2026, with exhibits appended thereto (collectively “the Evidence” below);

The Tribunal having held a Case Management Hearing by way of remote video platform on Thursday 25th June 2026

Upon hearing Ms [COUNSEL] of Counsel for the Claimant, the Respondent neither appearing nor being represented, and

Upon considering the Evidence

NOTICE

NOTICE IS HEREBY GIVEN to the parties that the Tribunal intends to make a decision disposing of these proceedings without a hearing

The decision which it is proposed to take, and order which the Tribunal proposes making, are as follows (NB the provisions below are a proposed, and not a final, order):-

“UPON the Respondent having been given not less than 28 days’ notice of the Tribunal’s intention to dispose of these proceedings without a hearing.

AND UPON no objections having been received from the Respondent within that time.

1. Pursuant to Paragraph 26 of Schedule 3A to the Communications Act 2003, the Agreement appended to this Order marked “Annex A” is imposed on the parties with effect from the date of this Order.

3

2. No order as to costs.”

If any party wishes to make representations on what is proposed they should do immediately.

This notice is made under rule 31 of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013

ORDER

UPON the following terms having the following meanings in this Order: (1) “the Code” meaning Schedule 3A to the Communications Act 2003; (2) “the Paragraph 26 Notice” meaning the notice, pursuant to paragraph 26(3) of the Code, dated 29 January 2026; (3) “the Land” meaning land lying to the west of [NAME], [ADDRESS], [NAME], [POSTCODE]; (4) “the Reference” meaning the reference, dated 10 March 2026, under paragraph 26 of the Code for an order imposing an agreement for rights in respect of the Land on an interim basis; (5) “the Directions Order” meaning the Order of the Tribunal dated 6 May 2026, pursuant to which the Tribunal listed the Reference for a remote CMH on 25 June 2026; and (6) “the FTT Rules” meaning the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.

AND UPON the Tribunal, pursuant to Rule 7(6) of the FTT Rules, having dispensed with the sending of written notice of the Directions Order to the Respondent.

AND UPON the Tribunal:

(1) indicating its intention to dispose of the Reference by imposing on the parties, pursuant to paragraph 26(1) of the Code, the agreement annexed to the Paragraph 26 Notice; but

4

(2) expressing concerns about disposing of the Reference summarily in circumstances where the Respondent has not been notified of this hearing.

IT IS ORDERED THAT:

1. The Claimant shall serve notice of the Tribunal’s intention to dispose of the Reference without a hearing (“the Notice”) upon the Respondent. The Claimant shall do so by affixing the Notice (which incorporates this Order), or a copy of the same, to a conspicuous object on the Land.

2. The Claimant shall – following the effluxion of 28 days from the service of the Notice – certify to the Tribunal that: a. the Notice has been served in accordance with paragraph 1 of this Order; and b. the Respondent has been given not less than 28 days’ notice of the Tribunal’s intention to dispose of the Reference without a hearing.

3. Upon receipt of the certification referred to in paragraph 2 of this Order above, the Tribunal shall – if no objection has been received from the Respondent within 28 days of service of the Notice – proceed to dispose of the Reference without a hearing pursuant to Rule 31(2) of the FTT Rules. The Tribunal shall dispose of the Reference by making an Order in the form annexed hereto.

REASONS

The Respondent and the Constitution of these Proceedings

1. At the Case Management Hearing of 25th June 2026 the Tribunal was satisfied that these proceedings were properly constituted. The Respondent is “[NAME]” under the Code paragraph 105(5)(a) and (6)(b), the land being unoccupied, but the unregistered and unidentified legal owner having an “interest in the land [that] would be prejudicially affected by the exercise of a code right in relation to the land.”

5 2. Whilst the Tribunal is satisfied that the Code accommodates proceedings in these circumstances on a conventional construction of paragraph 105, were that not to be the case, then a purposive construction is to the same effect: the Code cannot be taken to have been intended to leave an operator (in this case a [NAME]) without lawful redress in circumstances of the sort arising in this case (where the Respondent is not in occupation and unidentified) and as [RESPONDENT] [NAME] at [106] of [COMPANY] v Compton Beauchamp [2022] UKSC 18, said (in the context of paragraph 9 of the Code and the word “[NAME]”): “…the starting point here is not to define the word “[NAME]” and then allow that definition to mandate how the regime established by the code works. The correct approach is to work out how the regime is intended to work and then consider what meaning should be given to the word “[NAME]” so as best to achieve that goal’.

The Merits of the Proceedings

3. The Application is currently unopposed.

4. The Evidence demonstrates that notice has been provided by the Applicant as required under Code paragraph 20, but without eliciting any response from [NAME]. The factors required to be considered to fulfil the requirements of Code paragraph 21 are dealt with in the Applicant’s Statement of Case. The Tribunal considers that the lopping of trees as addressed in the draft “Access and Tree Lopping Agreement” (appended to this Notice and Order) is prejudicial to [NAME], but capable of being adequately compensated in money. Furthermore, the Evidence demonstrates that there is interference with electronic communications and the public interest in access to a choice of high quality electronic communications services is to be facilitated by such Agreement as that appearing in the draft. There is no evidence for any intention to redevelop all or part of the land in issue.

5. Hence, unless [NAME] is forthcoming with evidence to the contrary, the Tribunal can be confident in making the final Order sought by the Applicant: [redacted] the case for an Order is made out on the balance of probabilities.

6

The Conclusion of the Proceedings

6. The Tribunal is satisfied on the Evidence that all reasonable and practicable steps have been taken to identify “[NAME]” (as defined by the Code). Further, by displaying the notice on the land in question (as set out in the Statement of Service dated 13th March 2026), [NAME] has also had opportunity to participate in the matter of Code rights.

7. The Tribunal finds that the only reasonable, practicable and proportionate means to conclude these proceedings, having regard to Article 6(1) of Schedule 1 to the Human Rights Act 1998, is for [NAME] to have one further opportunity to participate, by being notified in the manner used previously that, should [NAME] not respond to this Notice within the stated period, the Tribunal shall make an Order as set out in the Notice without a hearing. [NAME] wish there to be a hearing, then contact must be made with the Tribunal before that period expires.

Dated this 26th June 2026

Judge Anthony Verduyn

BY ORDER OF THE TRIBUNAL