PCCW HKT TELEPHONE LTD AND ANOTHER v. LINK PROPERTIES LTD

HCMP 3458/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3458 OF 2016

(IN THE MATTER OF SECTION 14 OF THE

TELECOMMUNICATIONS ORDINANCE (CAP. 106))

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JUDGMENT

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1.  This is an application about the right of access of telecommunications operators to place and maintain telecommunications lines in “common area” of a commercial complex under s 14(1) of the Telecommunications Ordinance, Cap 106 (“TO”).

Background

2.  The Plaintiffs (“the Operators”) are fixed telecommunications network service providers in Hong Kong.  The Defendant (“Link”) is the sole legal owner of Choi Wan Commercial Complex (“the Complex”) in Choi Wan (I) Estate (彩雲 (一) 邨) (“the Estate”) in Ngau Chi Wan, Kowloon, Hong Kong.

3.  The Complex is situated in the Remaining Portion of New Kowloon Inland Lot No 6461.  The Remaining Portion of such Lot was notionally divided into 394,552 shares, of which 61,003 were allocated to the Complex.

4.  The Complex was built by Hong Kong Housing Authority (“HKHA”) in or about 1980 and was assigned to Link on 7 October 2009 (“the Assignment”). It consists of commercial blocks and car-parking spaces in the Estate set out in Schedule 1 to the Assignment.  HKHA and Link also entered into a Deed of Mutual Covenant (“DMC”) on 7 October 2009 in respect of the Estate.

5.  Over the years, Link as the landlord has leased out shop units in the Complex to various tenants.  Quite a number of tenancy agreements are included in the hearing bundles.  In this Judgment, I may have to refer to the terms of these tenancy agreements.  Since they are in substantial identical terms, for easy reference, I would adopt the tenancy agreement with the Hong Kong Jockey Club as the sample tenancy agreement (“the Tenancy Agreement”)^[1], and reference to the various clauses in this Judgment would be the ones stated in this Tenancy Agreement.

6.  The Operators refer those parts in the Complex that are not leased out by Link as “Common Use Parts”.  I would also adopt the same term in describing such areas which are the subject matters in this action.

7.  The Operators brought this action raising a number of questions and seeking a declaration that they have the right of access to the Common Use Parts to place and maintain telecommunications lines.  For the purpose of this application, Mr Beresford, counsel for the Operators, agrees that the court is only required to answer the first question in the Originating Summons which reads as follows:

“Whether upon the true construction of the [TO], the Plaintiffs as licensees within the meaning of section 2 of the [TO] have the right of access under section 14(1) of the [TO] to land situate and known as all those 61,003 equal undivided 394,552^nd parts or shares of an in all those pieces or parcels of ground situated in the Land Registry as the Remaining Portion New Kowloon Inland Lot No 6461 and of and in the messuages, erections, and buildings thereon known as Choi Wan (I) Estate (彩雲 (一) 邨) … … which was assigned to the Defendant by [the Assignment], save for such parts as are both (i) leased or otherwise specifically granted or reserved by [Link] for the exclusive occupation or use of any person and (2) presently and actually so occupied or used.”

8.  At present, the Operators are permitted by Link to have the right of access to the Common Use Parts to place and maintain telecommunications lines, with Link’s full co-operation in gaining access subject to prior application to enable Link to assess any risks involved in the installation and possible disruption to tenants.  The Operators also have to pay a modest sum of $1,800 per year as licence fee.

9.  The Operators however contend that they should be able to do so without the need to seek Link’s approval, asserting that they have a statutory right of access to the Common Use Parts pursuant to s 14(1) of the TO.  Despite such contention, they have not applied for: (1) a certificate from the Communications Authority certifying their right of access over any part of the Complex (including the Common Use Parts); or (2) an injunction from the court for access to any part of the Complex (including the Common Use Parts) pursuant to s 14(9)(a) or (b).

10.  In such circumstances, the sole issue before the court is whether the Common Use Parts fall within the definition of “land” under ss 14(1) and (10) of the TO.

The relevant provisions in the TO

11.  S 14(1) of the TO reads as follows:

“The [Communications] Authority, and any licensee authorized by the Authority either generally or for any particular occasion, may place and maintain a telecommunications line … in, over or upon any land … and may enter upon the land … for the purpose of site inspection, or other activities for or incidental to placement and maintenance of a telecommunications line …”

12.  There is no dispute that the Operators are licensees authorised by the Telecommunications Authority (now the Communications Authority) to place and maintain a telecommunications line on land pursuant to s 14(1).

13.  For the definition of “land”, s 14(10) provides an important exception:

“… … ‘land’ [under s 14(1)] does not include land for the exclusive occupation or use of any person whilst the land is being so occupied or used.”

14.  S 19A(1) of the TO also states that “land” in Part 4 (including s 14(1)) “includes common parts as defined in section 2 of the Building Management Ordinance (Cap 344)” (“BMO”).

15.  However, s 2 of the BMO provides that “common parts” of a building exclude:

“… such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner …”

16.  The main question I have to decide is whether the exception provided in s 14(10) applies.  There is also a supplemental argument based on s 19A(1) which I will further elaborate in the latter part of this Judgment.

The Operators’ contentions

17.  In his submissions, Mr Beresford has gone through extensively the legislative history of the TO.  According to him, s 14 of the TO is of ancient pedigree.[2] The existing version of the TO was first enacted in 1962, with Part IV of the TO amended twice: firstly by the Telecommunication (Amendment) Ordinance 1993 (38 of 1993) ss 4 & 5, and secondly by the Telecommunication (Amendment Ordinance (36 of 2000) ss 8-14.  The existing 14(10) was introduced in the amendments in 2000.  Prior to the 2000 amendments, there was no qualification to the meaning of “land” under s 14(1).

18.  Hong Kong Telephone Company Limited, the Operators’ predecessor, used to enjoy a monopoly in the provision of telegraphic and telephonic services in Hong Kong.  That monopoly came to an end on 30 June 1995 when the Government tried to introduce competition in the telecommunications sector by the granting of additional licences to other operators.   

19.  Mr Beresford argues that one of the purposes of the 2000 amendments was to improve telecommunications network to enhance competition amongst different network providers, and so the court should interpret the provisions liberally having regard to such legislative intention.

20.  Under the existing licence, the Operators carry the responsibility of “universal service obligation”[3]. Universal service, according to Mr Beresford, implies access to all occupiers. If the Operators’ right of access to place and maintain telecommunications lines in the Common Use Parts of the Complex is denied, they may not be able to provide telecommunications services to the tenants in the Complex.

21.  In support of his arguments, Mr Beresford also refers me to various documents such as Brief to Legislative Council[4], speech made by Government officials in the Legislative Council[5], Statements by the Telecommunications Authority[6] and Government paper[7].

22.  It is the Operators’ main contention that, by allowing the tenants of the Complex to use the Common Use Parts for access, Link has allowed shared use of the Common Use Parts.  As a result, Link has given up “exclusive use and occupation” of the Common Use Parts and the exception provided in s 14(10) therefore does not apply.

23.  According to Mr Beresford, s 14(10) does not use the term “ownership”, and so the fact that Link is the owner of the Common Use Parts is irrelevant. The wording in s 14(10) provides that actual exclusive occupation or use and intention to occupy or use exclusively are the concurrent conditions of the exception.  Occupation and use are questions of fact, and the word “use” indicates that no estate or interest in the land is necessary to bring the land within s 14(10).

24.  By entering into the tenancy agreements, Mr Beresford argues that Link has demonstrated an intention not to occupy or use the Common Use Parts exclusively.  Neither has it retained actual exclusive occupation or use of the Common Use Parts.  Under the terms of the various tenancy agreements, the tenants enjoy the right to use the Common Use Parts for access to and from the tenanted premises and the conduits.  As Link is not entitled to exclude the tenants from gaining access to the Common Use Parts during the terms of their respective tenancy, such land does not fall within the exception provided in s 14(10).

25.  I cannot accept these arguments.

The proper approach for construction of statutes

26.  Since the question is one of statutory interpretation, it is necessary to read all the relevant statutory provisions together and in the context of the whole statute “as a purposive unit in its appropriate legal and social setting”.[8] The proper starting point in statutory interpretation is always to “look at the relevant words or provisions having regard to their context and purpose”.[9]  It is impermissible for the court to distort or ignore the plain meaning of the text and “construe the statute in whatever manner achieves a result which [the courts] consider desirable”.[10]  Hence, purposive interpretation of a statute should not be seen as a judicial licence to ignore or refuse to give effect to the words which the legislature has chosen to use.  After all, the court is an interpreter of a statute, not a legislator.[11]

27.  Based on these established principles on statutory interpretation, I agree with Mr Jat, SC, counsel for Link, that the legislative history recited by Mr Beresford is of limited assistance.  Whilst there is no doubt that one of the purposes of the 2000 amendments to the TO was to improve telecommunications network access to enhance competition amongst different network providers, the legislature expressly enacted s 14(10) to exclude from the definition of “land” any land that is for and subject to any person’s exclusive use or occupation.

28.  There is nothing in the materials supplied by Mr Beresford as to the legislative background specifically on the introduction of s 14(10), but it is clear to me that the legislative intent is to maintain a balance between the need to provide telecommunications service on the one hand, and the need to preserve private property rights on the other, the latter of which are protected under the Basic Law[12] and the Hong Kong Bill of Right Ordinance (Cap 383)[13].  The statutory right of access under s 14(1) is not unlimited, so as not to infringe upon properties that are for the exclusive use or occupation of any person who ought to have the corresponding power to decide whether telecommunications lines should be placed on land under his control.

29.  This must be the reason why s 14(10) was introduced in the first place.  In balancing these competing interests, the court should focus on the express words used in the relevant statutory provisions.  The court is not permitted to distort the plain meaning of the words used with a view to achieve a result which may, on the face of it, be beneficial only to the end users of telecommunications services.

Link’s right of exclusive use and occupation of the Common Use Parts

30.  The express words used for the exclusion is that “land” under s 14(1) does not include “land for the exclusive occupation or use of any person whilst the land is being so occupied or used”. The word “or” suggests that either “exclusive occupation” or “exclusive use” would be sufficient to bring the land within the exception.

31.  Based on the evidence in this case, I am satisfied that Link has the right of exclusive use and occupation of the Common Use Parts in the Complex.

32.  First, the Complex was assigned by HKHA to Link for the purpose of enabling Link to enjoy the sole and exclusive right to use and occupy the Complex including the Common Use Parts:

(i) Schedule 1 of the Assignment provides that Link shall have “sole and exclusive right to hold use occupy and enjoy [the Complex]”;

(ii) Recital F of the DMC provides that Link shall have “sole and exclusive right to hold use occupy and enjoy to the exclusion of the [HKHA] [the Complex]”; and

(iii) Clause 5 of the DMC provides that Link shall have “sole and exclusive right and privilege to hold use occupy and enjoy to the exclusion of the [HKHA] and its successors and assigns [the Complex]”.

33.  Further, Link’s right under the DMC to, inter alia: (1) redevelop or further develop the Complex[14]; and (2) change the use of any part of the Complex[15], without the need to obtain approval from any other owners of the Estate, shows that Link retains exclusive control over the use and occupation of the Complex, including the Common Use Parts.

34.  The provisions in the DMC in relation to “common parts” do not in any way affect Link’s right of exclusive occupation or use of the Complex including the Common Use Parts, because the definition of “Estate Common Areas and Facilities” under the DMC excludes any parts in the Complex by invariably qualifying such areas as “other than [the Complex]”[16].

35.  The main contention of the Operators is that Link has “lost” its right of exclusive occupation and use of the Common Use Parts by entering into the tenancy agreements.  In a way, the dispute in this case can be narrowed down to this particular issue.

36.  I do not accept that Link has lost such right.

37.  First and foremost, Link at all times exercises the sole control as to whether it leases out any parts of the Complex and the extent of any rights to be granted to the tenants.  The reference to “common parts” in clause 1.2 of the Tenancy Agreement only serves to delineate those parts leased to the tenants from the rest of the Complex.  Unlike a multi-ownership building where common parts are co-owned by all the owners, the Common Use Parts here remain to be solely owned and occupied by Link.

38.  This is made plain by the definition of “common parts” in clause 1.2 and the reservation in Schedule 2, Part II, §5 of the Tenancy Agreement, the latter of which expressly provides that Link maintains the absolute right to change the “common parts” from time to time.

39.  In my judgment, this is an important provision showing Link’s exclusive control, use and occupation of the Common Use Parts. In fact, it is common for landlords of commercial shopping malls in Hong Kong to rent out well-accessible places in their malls to various short-term tenants to set up sales promotion counters especially during the festive seasons. Formerly, these places might be “public places” used for passageways.  Yet the landlords are permitted to re-delineate the “common parts” thereby giving the landlords complete and exclusive control, use and occupation over those areas. Needless to say, the landlords (as Link in the present case) have the right to prevent other tenants from entering such converted areas or using such areas as passageway.

40.  Imagine that the Operators were to have the statutory right to install telecommunications lines in the Common Use Parts, and Link then decides to re-delineate the Common Use Parts and convert a former “public area” to a shop, which Link, as the owner, is perfectly entitled to do under the tenancy agreements.  By reason of such change, Link may require the Operators to reroute the telecommunications lines.  Link can make such request under s 16 of the TO, but Link would have to bear the costs of the rerouting under s 16(2).  In a way, the statutory right of access is inconsistent with Link’s property right and its right to change the Common Use Parts expressly reserved under the tenancy agreements.  Hence in my judgment, this important reservation of right gives Link both legal and actual exclusive control, use and occupation of the Common Use Parts.

41.  Mr Beresford is not able to provide a satisfactory answer as to how the right of access can be granted when Link has the absolute right to change the Common Use Parts at any time.

42.  Further, it is clear that the tenants only have limited right of using the Common Use Parts in the Complex for access and for the proper use and enjoyment of their shops.  As stated in clause 4.27 and Schedule 2, Part I, §1 of the Tenancy Agreement, the tenants do not have any right to occupy the Common Use Parts.

43.  So far as the use of the conduits is concerned, Schedule 2, Part I, §2 of the Tenancy Agreement only grants the tenant the right to use the conduits over which Link maintains the exclusive control, as Link reserves the right to maintain and re-route the same under Schedule 2, Part II, §2.

44.  In support of his contention that Link has lost the right of exclusive use and occupation, Mr Beresford argues that the tenants can gain access to their shops at any hour of the day.  However, Link controls and fixes the opening hours of the shops.[17] Unless the leases confer a right to run the business 24 hours daily, which further reinforces Link’s exclusive control, the tenants are prohibited from remaining in their own shops at night except with Link’s prior permission.[18]

45.  Mr Beresford also refers me to the right of passage reserved under clause 5.9(a) of the Government Lease.  However, that is irrelevant as the present case does not concern the provision of telephone services to neighbouring land.

46.  I agree with Mr Beresford that the term “ownership” does not appear in s 14(10), rather the term “exclusive use or occupation” is used. However, that does not mean that ownership is irrelevant in considering the question of use and occupation.  It must be ownership which gives rise to the right of “exclusive” control, use and occupation of a piece of land.  In determining whether the land owner has lost such exclusivity, the court must determine the nature of the right given by the owner to the other persons.  In my judgment, it would be too simplistic a view that the court just looks at the physical use of the common area by other persons in deciding the question of use and occupation. The court needs to examine the nature of the right granted to the others and the right reserved by the land owner in determining this particular question.

47.  In any sense, the tenants cannot be said to have the right to occupy the Common Use Parts.  At most, the tenants only have a contractual right, as opposed to proprietary right, to “use” the Common Use Parts subject to Link’s control.  The control is substantial because Link can determine the operating hours of the Complex.  More importantly, Link can determine the areas of the Common Use Parts.   Whilst Link may be bound by the terms of the tenancy agreements to provide a passageway for access, which is a contractual right, the tenants cannot claim a proprietary right to use a particular area of the Common Use Parts.  As demonstrated above, such use is subject to Link’s complete control.  Under such circumstances, it would not be right to say that Link has given up exclusive right to use and occupy the Common Use Parts by entering into the tenancy agreements the terms of which are the same as those stated in the Tenancy Agreement.

48.  Again I have to emphasise that either exclusive occupation or exclusive use would be sufficient to bring the Common Use Parts within the exception.

49.  In his submission, Mr Beresford has referred me to cases such as JA Pye (Oxford) Ltd v Graham[19] and Newcastle City Council v Royal Newcastle Hospital[20]. Whilst possession, use and occupation may be questions of fact and factual use and occupation and intention to use and occupy are both relevant in considering the issue of use and occupation, I take the view that, having regard to the nature of the right granted to the tenants and the right reserved by Link under the terms of the tenancy agreements, Link has factual exclusive use and occupation and the intention for exclusive use and occupation of the Common Use Parts.  Hence, these authorities cannot assist the Operators’ case.

Further evidence showing Link’s actual exclusive use and occupation of the Common Use Parts

50.  Though Link may have the legal right to exclusive use and occupation of the Common Use Parts, the Operators contend that Link, by allowing the tenants to use the same for access, has not retained “actual” exclusive use and occupation of the Common Use Parts, which they say is a condition for the exception in s 14(10) to apply.

51.  I do not accept that such argument can take the Operators’ case any further.  As mentioned above, the court should not just look at the physical use of the Common Use Parts.  In determining the question of exclusive use and occupation, the court should examine the nature of the right granted to the tenants and the right reserved by Link, and I have already explained above why Link has not lost the actual exclusive use or occupation of the Common Use Parts.

52.  In any event, there is also other evidence to substantiate Link’s actual exclusive use and occupation.

53.  The clearest evidence is the undisputed fact that Link has been exercising the exclusive right to grant ingress and egress to visitors to the Complex and the Common Use Parts, and determine the opening hours of the Complex.

54.  The Operators argue that some parts of the Complex are accessible 24 hours.  However, this does not disturb the fact that the Link has the exclusive control over the accessibility of any part of the Complex.

55.  In addition, Link carries out various acts to manage, maintain and repair the Complex at its own costs, including arranging 24-hour security service, daily cleaning service, general repair and maintenance, and installation of CCTV, and closing down access by third parties to various parts of the Complex for enhancement works which cost over $200 million.

56.  The Operators try to argue that the Common Use Parts “appear to be for the non-exclusive and common use” of Link and its tenants, customers, invitees, and members of the general public.  However, that Link permits members of the public to access the Complex including the Common Use Parts does not lead to the conclusion that Link is not in exclusive use or occupation.  This only means that at all times, people entering the Complex are visitors who are permitted entry by Link.

57.  Mr Jat also highlights one of the fallacies in the Operators’ contention.  The Operators’ position is that the shop units in the Complex have been leased to the tenants “in separate and exclusive occupation”[21], and hence the exception in s 14(1) applies to the tenanted premises.  But applying their logic, such shops would not be under the exclusive occupation or use of the tenants because members of the public can undoubtedly enter them freely. Again this shows that the Operators’ contentions are lacking proper basis.

58.  In their submissions, the Operators also argue that any land which had been occupied by their telecommunications lines would no longer be in Link’s exclusive occupation.  They further submit that they had managed, maintained and repaired their own telecommunications facilities in the Complex.

59.  Again there is no merit in such argument.  The Operators were granted access by Link to install and maintain the facilities under their licence agreement with Link.[22] It is against common sense to suggest that the Operators should be able to acquire a statutory right of access after the licensed period of “occupation” has expired when no such prior right had existed.

60.  Lastly, the Operators appear to suggest that in order to show exclusive occupation and use, Link must show that it has exercised its right to an extent that would “constitute a derogation from grant” to the tenants.  Such contention is groundless and not supported by any authorities.  It is also not clear why Link exercises exclusive control over the Complex would necessarily lead to derogation from grant.  The fact that Link is contractually bound to provide passageways for access to the tenants does not mean that Link has lost exclusive use or occupation of the Common Use Parts.

Supplemental argument under s 19A(1) of the TO

61.  This would be sufficient to dispose the case. However, Link also has a supplemental argument based on s 19A(1) of the TO.

62.  According to such provision, “land” under s 14(1) includes “common parts” as defined in s 2 of the BMO.  On the other hand, s 2 of the BMO defines “common parts” as excluding any parts which have been designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner.  As the DMC in the present case has expressly provided that the whole Complex is owned by Link with exclusive possession, the Common Use Parts in the Complex would fall within the exception of “common parts” under s 2 of the BMO.  By reason of such exclusion, Mr Jat submits the Common Use Parts cannot fall within the meaning of “land” under s 14(1).  In other words, through s 19A(1), s 2 of the BMO has the effect of qualifying the meaning of “land” under s 14(1).

63.  Since I have already held that the Common Use Parts do not fall within the meaning of “land” by reason of the exclusion provided in s 14(10), it is quite unnecessary for me to deal with this supplemental argument.

64.  However, it is clear from the wordings in the TO that the legislature intended to draw a clear distinction between:

(i) common areas jointly owned by all owners in a building, as commonly found in multi-storey residential buildings and multi-ownership shopping malls; and

(ii) common areas in a shopping mall which is owned by one single owner as commonly found in a lot of commercial shopping malls in Hong Kong.

65.  It may be right for Mr Beresford to say that when s 14(1) was first introduced, the meaning of the word “land” was quite unqualified. In 1993, the new s 19A(1) was introduced to provide that “land” includes “common parts” as defined in s 2 of the then Multi-Storey Buildings (Owners Incorporation) Ordinance (Cap 344).  In other words, the legislature intended that the right of access should cover “common parts” of multi-storey buildings.  No one would suggest that such right should extend to private residential units in the buildings.  In 2000, the new s 14(10) was enacted.  The legislative intention could not have been clearer.  The new section makes it clear that the right of access would not extend to “private properties” of which the owners enjoy exclusive use and occupation.

66.  Despite the distinction between “common areas” co-owned by different owners or and those owned by one single owner, it seems that, from the wording in s 14(10), it is possible for a single owner to give up exclusive use or occupation of his property by granting an absolute proprietary interest in his land to other persons.  In such case, the exception in s 14(10) may not apply.  However, the present case is far from one in which the landlord has given up its exclusive use and occupation of the “common areas” in his property, and so I prefer to decide this case on the basis that the exception in s 14(10) applies, and not on the ground that s 2 of the BMO has the effect of qualifying the meaning of “land” under s 14(1) of the TO. After all, these two pieces of legislations are dealing with different matters.

The effects of the denial of right of access

67.  Mr Beresford has also invited me to look at the effects if the court were to deny the Operators the right of access to the Common Use Parts. Theoretically, Link can impose a ransom charge for access, with the result that the tenants in the Complex may not be able to enjoy any or any cheap telecommunications services.

68.  Mr Beresford also refers me to the other problems which may be caused by the denial of the right, for example, telecommunications operators may not be able to gain access to the rooftop of Heng Fa Chuen Shopping Centre to place telecommunications lines because it is the private property of MTR Corporation Limited.  Since the meaning of “land” applies both to the right of access to lay telecommunications lines under s 14(1) and to install radiocommunications facilities under s 14(1A), service providers may not be able to install radiocommunications facilities in such areas.

69.  Apart from the fact that some of these concerns are unsubstantiated by evidence, I think that Mr Beresford has exaggerated the extent of the problem.   In order to attract tenants and customers to their shopping malls, landlords such as Link should not make it difficult for operators to lay telecommunications lines or to install radiocommunications facilities in their shopping malls.  After all, these matters would be dictated by market force.

70.  On the other hand, the granting of the right of access under the existing circumstances may create a lot of uncertainties. Whilst the landlord retains the right to change the common areas, there is grave uncertainty as to the exact area of the land subject to any right of access. Furthermore, the present case is no different from a case where the owner of a private residential apartment decides to rent one of his bedrooms to a third party.  Obviously, the owner would grant a right to the tenant to use his living room.  Does it mean that the right of access extends to the living room which is very much a private property?  Partitioned flats are quite common in Hong Kong.  Does it mean that the common areas inside these flats are caught by s 14(1)?  I have serious doubt as to whether such was the intention of the legislature.

71.  In any event, the court is an interpreter of a statute, not a legislator.  In construing the meaning of a statutory provision, the court should focus on the meaning of the provision rather than to look at the effects of its decision.  If s 14 in its existing form is not able to achieve a particular result, it is a matter for the legislature to consider whether they should revise the wording in s 14(10) so as to override private proprietary rights with a public interest in providing direct access for installation of telecommunications lines.  In my judgment, it would be too ambitious for the Operators to persuade the court to construe the statute in the manner as contended for by them.

72.  For the above reasons, I answer the first question in favour of the Defendant.  I find that the Operators do not have the right of access under s 14(1) of the TO to lay or maintain telecommunications lines in the Common Use Parts of the Complex.  I also dismiss the Operators’ claim for any relief claimed in the Originating Summons.

73.  Finally, I make a costs order nisi that the costs of the Originating Summons be to the Defendant with certificate for 2 counsel which shall be made absolute 14 days after the date of the handing down of this Judgment.

74.  I am grateful to counsel for their assistance.