The Supreme Court has issued a judgment confirming that telecommunications operators can apply for new rights under the 2017 Electronic Communications Code (the Code) in respect of land on which they already have apparatus or equipment installed.
The Supreme Court has issued its judgment on a series of jointly heard cases, Cornerstone Telecommunications Infrastructure Ltd v Compton Beachamp Estates Ltd, Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd and AP Wireless II (UK) Ltd, and On Tower UK Ltd v AP Wireless II (UK) Ltd.
The most significant point considered by the court was whether a Code operator that had already installed its equipment at a property could apply for new Code rights where it was, in effect, both the “operator” and the “occupier” of land for the purposes of paragraph 9 of the Code. Paragraph 9 sets out the parameters by which Code rights may be conferred and dictates that this is done by agreement between the occupier of the land and the operator. As, in this scenario, the operator fulfilled both of these roles and could not enter into an agreement with itself, the Court of Appeal found that an application for new Code rights could not be made.
The Supreme Court disagreed with this outcome. The argument of the landowners to defend the Court of Appeal position was that the process for applying for a new Code Agreement is set out in Part 5 of the Code, which deals with agreements between occupiers and operators. Part 5 also dictates that new Code rights continue in effect after the expiry of the term of a Code Agreement and it is only at that point that both sides can apply for new rights under the Code.
However, the court held that it must be the case that for the purposes of Paragraph 9 of the Code, the operator must be different from the occupier of the land. The purpose of the new Code was to encourage the fast roll out and enhancement of digital infrastructure across the country and it was not the intention that operators would be prevented from benefiting from these new enhanced rights simply because their apparatus was already on the land in question or they were already in occupation.
The court agreed that an operator can only apply to modify the terms of an existing Code agreement,once the term of such agreement had come to an end as set out in Part 5 of the Code. However, the court found that this did not prevent an operator from applying for additional Code rights in respect of a piece of land which they already occupied. Arguably the decision creates an ambiguity for site providers and operators over whether changes to agreements proposed by operators are "modifications of an existing agreement" (which are not allowed during the term) or the introduction of "new rights" (which can be applied for before the end of the term).
Separately, the court confirmed that where an operator had a lease protected by the security of tenure provisions of the Landlord and Tenant Act 1954 (the 1954 Act), the operator must pursue its renewal through the process set out in the 1954 Act rather than through the process in the Code. This would not, however, prevent the operator from seeking new Code rights in such a renewal.
Operators can therefore now apply for new Code rights notwithstanding that they are already in occupation of a particular piece of land. The court did, however make clear that where an operator was already party to a Code agreement, they could only apply to modify the terms of their existing agreement once the term of such agreement had expired.
These decisions provide welcome clarity on a few issues, namely:
- An operator already in occupation is not prevented from seeking new or additional Code rights because it is both the occupier and operator at the relevant site.
- Operators may only seek to modify the terms of an existing Code agreement once such agreement had expired.
- Any operator with a protected tenancy under the 1954 Act must use the process set out in the 1954 to pursue a renewal, but this does not prevent them seeking enhanced Code rights under such renewal.
Jonathan Cope