Introduction

The legal landscape governing the installation of electronic communications infrastructure on private property in Scotland was significantly shaped by the recent judgment in Marks and Spencer PLC against Cornerstone Telecommunications Infrastructure Ltd ([2023] ScotCS CSIH_24). This case revolved around the appellant, Marks & Spencer PLC, contesting an order imposed by the Lands Tribunal for Scotland, which mandated an agreement granting Cornerstone Telecommunications infrastructure rights under the Electronic Communications Code as outlined in Schedule 3A of the Communications Act 2003.

Summary of the Judgment

The core of the dispute involved Cornerstone Telecommunications' application to install communications apparatus on property owned or tenanted by Marks & Spencer. Marks & Spencer resisted, citing potential unlimited and unquantifiable prejudices, particularly concerning structural integrity, electrical supply, electromagnetic field (EMF) safety, and access and security. The Lands Tribunal initially favored the respondent, citing significant public benefit and the feasibility of adequate compensation. However, Marks & Spencer appealed, arguing procedural and substantive errors, specifically regarding the consideration of Public Exclusion Zones (PEZ) under ICNIRP guidelines. The Scottish Court of Session upheld the Tribunal's decision, emphasizing procedural correctness and the sufficiency of the Tribunal’s examination of ICNIRP-related issues.

Analysis

Precedents Cited

The judgment does not specifically reference prior case law; however, it implicitly aligns with established principles under the Electronic Communications Code and the regulatory framework provided by the Communications Act 2003. The case underscores the importance of adherence to regulatory guidelines, such as those set by the International Commission on Non-Ionizing Radiation Protection (ICNIRP), in adjudicating disputes involving electronic communications infrastructure.

Legal Reasoning

The court's legal reasoning hinged on two primary aspects:

• Exclusion Zones Compliance: The Tribunal had assessed the implications of installing communications apparatus within designated Occupational Exclusion Zones (OEZ) and Public Exclusion Zones (PEZ) as per ICNIRP guidelines. Marks & Spencer contended that their staff were not OEWs and thus could not safely access areas within the PEZ, potentially hindering maintenance operations.
• Procedural Timeliness: Marks & Spencer introduced the PEZ issue after the Tribunal had already addressed the initial ICNIRP concerns. The court held that introducing new substantive issues at such a late stage violated procedural fairness and the statutory timelines governing tribunal decisions.

The court concluded that the Tribunal had adequately addressed the ICNIRP issues present at the time of its initial decision. The appellant's failure to raise the PEZ-related concerns earlier, coupled with the lack of evidence undermining the Tribunal’s findings, led to the dismissal of the appeal.

Impact

This judgment reinforces the necessity for applicants in Electronic Communications Code disputes to present all substantive issues promptly and within regulated timelines. It underscores the court's unwillingness to entertain late-stage submissions that could disrupt the procedural integrity and efficiency of tribunal decisions. Additionally, it reaffirms the validity and sufficiency of ICNIRP guidelines in assessing EMF safety concerns in the context of electronic communications infrastructure installations.

Complex Concepts Simplified

Electronic Communications Code

A legislative framework allowing operators to install electronic communications equipment on or near land owned by others. It provides mechanisms for resolving disagreements over installation terms.

ICNIRP Guidelines

Standards established by the International Commission on Non-Ionizing Radiation Protection to regulate exposure to electromagnetic fields. They define Occupational Exclusion Zones (OEZ) for workers and Public Exclusion Zones (PEZ) for the general public.

Occupational Exclusion Zone (OEZ)

Areas surrounding installations where only trained and authorized workers (OEWs) may enter without restrictions due to potential EMF exposure.

Public Exclusion Zone (PEZ)

Areas where the general public is restricted from entering due to higher levels of EMF exposure. Access is limited to non-occupationally exposed individuals to ensure public safety.

Procedural Timeliness

The expectation that all relevant issues and evidence are presented within specified timeframes during legal proceedings to ensure orderly and fair adjudication.

Conclusion

The decision in Marks & Spencer PLC v Cornerstone Telecommunications Infrastructure Ltd serves as a pivotal reference for future disputes under the Electronic Communications Code. It emphasizes the critical importance of adhering to procedural deadlines and the comprehensive presentation of all substantive issues at the earliest possible opportunity. Moreover, it validates the application of ICNIRP guidelines in balancing public safety with the operational needs of telecommunications infrastructure. Stakeholders in similar disputes must heed the procedural rigor demonstrated in this case to ensure their concerns are duly considered without jeopardizing the timeline and integrity of the adjudication process.