Author
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Emma Dooley

Associate

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Author
Female silhouette

Emma Dooley

Associate

Read More

8 July 2020

RED Alert - Summer 2020 – 4 of 4 Insights

Operators beware – Electronic Communications Code "Black Hole"

Summary

The Upper Tribunal has held that an operator occupying premises as a tenant at will without written agreement after the expiry of its lease was not occupying under a "subsisting agreement" for the purposes of Part 5 of the Electronic Communications Code 2017.

The Electronic Communications Code

The Electronic Communications Code sets out the basis on which telecommunications operators may exercise rights to install and maintain electronic communications apparatus on land. The code was updated in 2017 to improve public access to a choice of high-quality electronic communications services.

Facts of the case

AP Wireless II (UK) Ltd is freehold owner of land at Queens Oak Farm, Towcester.

The claimant, Arqiva Services Ltd, previously occupied the land pursuant to a 20 year lease which expired in October 2016. The lease was contracted out of Part II of the Landlord and Tenant Act 1954, however, prior to expiry of the lease, the claimant had rights under the old 1984 Code.

On expiry of the lease in October 2016, the Claimant remained in occupation, paying rent and no agreement was subsequently reached on the parties entering into a new lease.

Following the introduction of the Electronic Communications Code in 2017, the claimant sought to regularise its occupation and requested the imposition of a new lease by the Upper Tribunal.

Decision

The Upper Tribunal held that as the claimant continued to occupy as a tenant at will without any written agreement, there was no “subsisting agreement” under the 1984 Code which could invoke the transitional provisions under Part 5 of the 2017 Code.

Having found that there was no subsisting agreement the judge considered whether the Tribunal had jurisdiction to impose Code rights under paragraph 20 of Part 4 of the Code.

The outcome of this was dictated by the decision of the Court of Appeal in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd, where it was made clear that that there is no jurisdiction, in any circumstances, to impose an agreement under paragraph 20 on an operator that is already in occupation of a site. The judge noted that the position created "a black hole where an operator is unable to have Code rights at all except on a temporary or interim basis".

Our comment

The decision is controversial in that it is wholly at odds with the statutory purpose of the Code, that is, "to facilitate the public interest in access to a choice of high quality electronic communications services". The decision and will be of significant concern to operators, many of whom will occupy premises on an undocumented basis.

It was evident that the tribunal felt constrained by the Court of Appeal's previous decision and was reluctant to follow its view. The judge commented:

"I suggest, with great respect to the Court of Appeal, that a wrong turn may have been taken, and that the narrow interpretation of the requirement of occupation in the Code leads to results that are unacceptable in terms of the policy of the Code."

Accordingly, the tribunal has confirmed that it will grant permission to appeal upon application. In the meantime, operators that have allowed their 1984 Code rights to lapse will be understandably alarmed by this decision.

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