On 13 July 2023 Scotland's Court of Session determined an appeal against a decision of the Lands Tribunal of Scotland (the Tribunal) in the case of Marks and Spencer plc v Cornerstone Telecommunications Infrastructure Ltd. The Tribunal had granted Cornerstone Telecommunications Infrastructure Limited (CTIL) Code rights in respect of rooftop premises at Princes Street in Edinburgh which was occupied by Marks & Spencer plc (M&S).
The appeal turned on whether the Tribunal had properly considered all of the submissions on electro-magnetic field exclusion zones before it made its final Order granting Code rights in circumstances where M&S had sought to raise a new argument about this late in the day once all of the evidence and arguments had already been heard.
Exposure to the electro-magnetic fields associated with telecoms kit is regulated and subject to exposure limits for (i) occasionally exposed workers (OEWs) exposed in the course of their work and, (ii) members of the public generally where the exposure is not work related. There are different exposure limits for each requiring different exclusion zones and the public exclusion zone (the PEZ) is larger.
At a final hearing to determine two matters unrelated to electro-magnetic fields, M&S made a new submission that its employees were members of the public and could not therefore enter the PEZ (the full extent of which had only recently been disclosed by CTIL) to access its rooftop equipment located there. The Tribunal declined to consider this late submission and decided that M&S had had every opportunity to raise this earlier (which it did not) and the Tribunal's consideration of the electro-magnetic issues was now complete.
M&S appealed, arguing that the Tribunal had erred in law by not taking into account late submissions by M&S or alternatively that it had failed to take into account crucial evidence, namely the plans showing the extent of the PEZ. CTIL said that this was a new issue introduced at the last minute and there had been no prior argument from M&S that the PEZ might interfere with its operations. CTIL had always maintained that M&S staff and contractors were not members of the general public but were OEWs who could enter the PEZ and M&S had not until then sought to contradict this.
The Court left open the question of whether staff and contractors were OEWs who could access the PEZ and instead focussed on whether the arguments about this had been raised in time. It held that the Tribunal was "fully entitled to decline to entertain the new issue which M&S sought to introduce belatedly". If the new issue was entertained it would have prompted further evidence and submissions causing a delay which would be undesirable given (i) the Tribunal's obligation to determine applications within 6 months of receipt, and (ii) that it would have penalised CTIL for M&S' failure.
Whilst decided in Scotland, the case is a reminder that all submissions regarding Code rights should be made at the original hearing and leaves the door open for further arguments about the status of employees and contractors as members of the public (and subject to a larger exclusion zone) rather than OEWs as a potential route to resisting the grant of Code rights.
