[2025] UKUT 136 (LC)

The appeal concerns an office building in the City of London known as Alder Castle (the Building). The appellant, Covent Garden IP Ltd, owns the Building for which it paid more than £103 million in 2019 and which it has since spent further substantial sums refurbishing. I will refer to the appellant as the Building Owner.

The respondent is a telecommunications company, which I will refer to as CTIL. In 2021 it identified the Building as a possible replacement site for telecommunications apparatus which it had been required to remove from another building in the vicinity. In November 2021, with the agreement of the Building Owner, it undertook an initial inspection (or “MSV”, meaning “multi skilled visit” i.e. a survey and inspection by professionals in various telecommunications disciplines). It later needed access for further investigation but by that time the Building Owner had a refurbishment scheme of its own to plan and was distinctly less cooperative.

In October 2023 CTIL made a formal request of the Building Owner for an agreement confering interim rights under paragraph 26 of the Code to enable access for a further MSV. Interim rights can only be imposed by order of a tribunal so, when its request was ignored, CTIL referred the matter to this Tribunal which promptly transferred it to the First-tier Tribunal, Property Chamber (the FTT). The FTT gave directions on 20 February 2024 in which it stated that it was under a duty imposed by regulation 3(2) of the Electronic Communications and Wireless Telegraphy Regulations 2011 to determine the reference within 6 months, which meant by no later than 7 August 2024. It directed the parties to exchange drafts of an interim rights agreement by 12 April and listed the matter for hearing on 16 July.

The directions provided for an exchange of witness statements dealing with any disputed factual issues and included the following paragraph concerning expert evidence:

“If the parties are unable to reach agreement on the consideration to be paid under the new agreement, and if either party wishes to rely on expert valuation evidence on that issue, they may apply not earlier than 12 April 2024 for permission to do so, including in their application a proposed timetable (agreed so far as possible) for the exchange of evidence or the appointment of a single joint expert.”

The stipulation that no application for expert evidence could be made before 12 April 2024 was included to allow time for negotiation and because by that date, and not before, the formal, open position each party was taking on the issue of consideration would be apparent as the Building Owner would either have agreed CTIL’s proposal or would have included an alternative figure in the travelling draft agreement.

The Building Owner did not resist an agreement in principle but the parties did not reach agreement on the consideration payable or on certain other terms including the areas of the Building to which access was to be permitted. CTIL’s draft agreement proposed a nominal fee of £1 for the right to undertake non-intrusive surveys of the unlet parts of the Building as often as might reasonably be required during a period of six months, on giving seven days’ notice on each occasion. On 16 March the Building Owner’s solicitors indicated that it would accept consideration of £2,000 in place of the £1 offered by CTIL in the draft agreement.