13 June 2019
The previous legislation governing telecommunications leases was replaced by the Electronic Communications Code (the 'Code') as set out in Schedule 1 of the Digital Economy Act 2017 which came into force in December 2018.
The Code seeks to clarify the relationship between landowners and telecoms operators, as well as conferring certain rights on operators ('Code rights') such as to install and maintain apparatus in, on or under land and to carry out works to the land in connection with the apparatus; the rationale behind this legislation is to better facilitate network infrastructure throughout the UK.
Telecoms operators can acquire Code rights in one of two ways:
The second route is far reaching with obvious potential to concern landowners, such is its similarity to compulsory acquisition; the first cases on paragraph 20 of the Code have begun to be handed down and are providing some insight on how the tribunal is approaching the interpretation of the Code.
Vodafone had been granted a 10 year telecommunications lease in 2004 relating to a telecoms mast and apparatus, and had remained in occupation of the land at the expiry of the term (under the protections provided by the Landlord and Tenant Act 1954).
Possession proceedings had been ongoing between the landowner and Vodafone after negotiations for a new lease had broken down. Cornerstone, a joint venture formed by Vodafone and Telefonica, had served a notice under paragraph 20 of the Code on the landowner (Compton Beauchamp Estate Ltd) requesting Code rights.
The tribunal had to decide whether it had jurisdiction to impose an agreement between the landowner and Cornerstone under paragraph 20 of the Code, when it was in fact a third party (Vodafone) that was in occupation of the land.
It was held that it did not; this was notwithstanding that Vodafone and Cornerstone were connected and that there was every reason to believe that Vodafone would cooperate in allowing Cornerstone to take up occupation of the site. It was noted by the judge that the Code is a complex piece of legislation and affects many landowners.
Cornerstone featured again in this second case. Here they were seeking rights through paragraph 20 of the Code where Vodafone had been an existing tenant of a mast site.
The landowner (Keast) contended that as the extent of Code rights claimed under the paragraph 20 notice had been less than those claimed at the tribunal, this rendered the paragraph 20 notice invalid and that the proceedings should be struck out.
Keast also contended that under common law principles, the electronic communications apparatus on the site had become part of its freehold land because it was annexed to it.
Compton Beauchamp Case
by Lisa Bevan
by Lisa Bevan