16 January 2020
The Court of Appeal has upheld the Upper Tribunal's decision that a landowner is not bound to grant a new Code right to an operator if the landowner is not in occupation of the site.
Cornerstone Telecommunications Infrastructure Ltd (CTIL) was formed as a joint venture between Vodafone and Telefonica. Vodafone owned a telecommunications mast on the site, which it shared with Telefonica. After the expiry of the lease, the landowner served a notice to quit, but Vodafone claimed that it had rights under the Code to occupy the site, preventing the landowner from requiring the removal of the mast by way of a court order.
CITL served a notice under paragraph 20 of the Code on the landowner, seeking confirmation from the landowner that it was bound to grant a new code right. The notice was not served on Vodafone, as the occupier of the site. CITL and the landowner entered an agreement for temporary rights, pursuant to paragraph 9 of the Code. However, the Court of Appeal held that the landowner could not confer code rights by agreement when it was not in occupation of the land.
This case provides some comfort for non-occupying landowners as they may be able to avoid the imposition of code rights on their land, if they do not occupy the site in question and another operator is in-situ. That said, the facts are somewhat unusual, in that the issue largely arose from the joint venture.
The Bill aims to assist telecommunication companies seeking to install broadband by permitting operators to apply for interim rights if a landlord fails to respond to a notice under the Code.
The Bill will amend the Code so that operators can obtain interim code rights in respect of multiple dwelling buildings, by applying to the tribunal. The aim of the Bill is to prevent reluctant landlords from stifling the installation of broadband infrastructure in flats. The interim rights can last for a maximum of 18 months. After the interim rights have terminated, either the landlord will agree that the operator has code rights or the operator can apply to the tribunal under Part 4 of the Code.
The Bill grants further powers to operators and confirms the government's support for operators providing telecommunication services to the public.
The Court of Appeal has clarified that an operator can have a right to inspect land, to see if it is suitable for telecommunications apparatus under the Code.
The University of London owns an accommodation block in central London. CITL wished to undertake a multi-skilled visit, being a non-invasive inspection of the site, in order to assess its suitability for telecommunication apparatus. CITL served notice under paragraph 26 of the Code (application for interim rights under the Code).
The Court considered whether the intention of the Code was to include a multi-skilled visit within an operator's entitlement to complete 'works' under paragraph 26 of the Code. The Court of Appeal held that pursuant to paragraph 3(d) of the Code, the definition of 'works' was to include a non-invasive multi-skilled visit. Upon interpretation of the Code, the Court confirmed that it was in the public's interest to include multi-skilled visits as an operator's right.
The Court also considered whether the paragraph 26 request could be sought alone ie without the express intention to obtain rights pursuant to paragraph 20 of the Code. In Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd, the Court held that a request for interim rights must be 'parasitic' of a request under paragraph 20 of the Code. However, in this case the Court distinguished between a request under paragraph 27 of the Code, which required the existence of apparatus to already be on the land, and a request under paragraph 26, whereby such a requirement was not necessary. As a result, the Court held that it was possible to claim paragraph 26 rights without it being a 'parasitic' part of a request for permanent rights under paragraph 20 of the Code.
The decision provides more rights for operators who can use the Code to review potential sites for telecommunication apparatus. The decision also prevents landowners from charging operators to conduct multi-skilled visits on their sites.
The Upper Tribunal has confirmed that an operator in occupation of premises with a protected lease is unable to claim rights under the Code.
CITL's tenancy had expired but it was holding over under section 24 of the Landlord and Tenant Act 1954 (the 1954 Act). CITL made an application under paragraph 4 of the Code to confer rights under the Code. The tribunal rejected the application and confirmed that CITL should apply for a new tenancy under the 1954 Act, rather than under the Code.
The tribunal confirmed that if the primary purpose of a lease was to grant rights under the Code, then it will not have the protection under the 1954 Act. Equally, if the purpose of the lease was not to grant rights under the Code, it can have protection under the 1954 Act, assuming that the parties have not contracted out of such rights.
The old telecommunications code created legal ambiguity over whether or not it was possible to terminate a code agreement due to subsisting 1954 Act rights. It was also ambiguous as to whether it was possible to terminate a 1954 Act tenancy with code rights. The Upper Tribunal has confirmed that under the Code, such ambiguity will not exist, as it is not possible to have protection from both the Code and the 1954 Act at the same time. The decision provides clarity and security for landlords hoping to terminate tenancies under the 1954 Act or the Code.