Updates on the interpretation of the new Electronic Telecommunications Code

Summary

The Tribunal is continuing to generate precedents on the new Electronic Telecommunications Code (the New Code). Three recent decisions are described in this article, but in summary it has been decided that:

• Operators cannot impose code rights on a landlord to benefit third party operators, even if the third party operators are already in occupation and are related to the original contracting party by way of a joint venture.
• Developers must consider the impact of their projects on telecommunications equipment on neighbouring land, as a Court may order a developer to pay for the relocation of the equipment if it is necessary to complete the development.
• The Courts have confirmed that operators cannot seek rights that stretch beyond those stated in notices they serve to impose new Code agreements. However, the Court also held that operators are not bound by their original proposals in such a notice.

Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] UKUT (LC)

Facts of the case

Vodafone were in occupation of a telecommunications mast on agricultural land under an old code agreement. The term of the agreement, which expressly excluded Vodafone's security of tenure under the Landlord and Tenant Act 1954, had expired.

Vodafone and Telefonica formed a new joint venture – Cornerstone Telecommunications Infrastructure Ltd (CITL). CITL applied to the tribunal to impose a new code agreement under paragraph 20 of the New Code on the freeholder, Compton Beauchamp Estates Ltd (CBE). A section 20 notice under the New Code is used when an operator requires a person to agree to confer a code right or to be otherwise bound by a code right.

The Tribunal dismissed the claim on the basis that CITL had not served a valid notice. Under paragraph 20 of the New Code, it is necessary to serve notice on the 'relevant person', which needs to be an occupier of the land. The Tribunal confirmed that in order to be an 'occupier' for the purposes of the New Code, a party must be in actual occupation of the land and not merely enjoy legal title.

Perhaps unusually, CBE didn't occupy the land itself, and nor did Telefonica or CITL, so the notice should have been served on Vodafone, being the only entity in actual occupation of the land. The Tribunal confirmed that the correct procedure would have been for CITL to make an application to bind CBE to an agreement under the New Code with Vodafone.

Impact of the case

This decision is reassuring to landowners, as the Tribunal adopted a strict interpretation of the New Code. Operators cannot unilaterally change the entity under a New Code agreement in order to impose code rights on a landlord; even if the proposed new entity is connected to the original contracting party of a Code agreement by way of a new joint venture.

Evolution (Shinfield) LLP and others v British Telecommunications Plc [2019] UKUT 127 (LC)

Facts of the case

A consortium of developers sought an order from the Upper Tribunal, under paragraph 40(6) of the New Code for the removal of an operator's electronic communications apparatus from a publicly maintained footway at the operator's expense.

The removal of the apparatus was essential to continue the construction of the new development, which would rely on a new access road being built to join and cover the footway.

The developer argued that under para 38 of the New Code, it shouldn't have to pay for the removal (at the cost of c.£300,000). Para 38 of the New Code states that operators must pay for relocation of their equipment if the equipment "…interferes with or obstructs a means of access".

The Tribunal rejected this argument and confirmed that the scope of para 38 would not extend to future or potential access routes, as it would only be applicable to routes that existed when the apparatus was installed.

Impact of the case

The case is a warning shot to developers and confirms the need to undertake diligent checks for telecommunication apparatus on surrounding land when considering new development plans.

As a matter of precaution, developers should broaden searches to neighbouring land which may be impacted by the development as relocation can be time-consuming and costly. As a further irritation, developers should also bear in mind that wayleave agreements, not being registrable at the Land Registry, may be difficult to identify in standard searches.

Cornerstone Telecommunications Infrastructure Ltd v Keast [2019] UKUT 116 (LC)

Facts of the case

Vodafone had a lease with renewal rights under the Landlord and Tenant Act 1954 for apparatus on a small area of land on Mr Keast's farm. Vodafone and Telefonica's new joint venture, CITL, sought to impose code rights on Mr Keast by serving a notice under paragraph 20 of the New Code.

Mr Keast defended the application on the basis that the proposed terms of the new agreement were different than the rights outlined in the para 20 notice.

The Upper Tribunal held that:

• An operator is able to seek a narrower scope of rights than those proposed in a para 20 notice without invalidating the notice for the purposes of a Tribunal application.
• An operator cannot seek rights that would be more expansive than the original para 20 notice.
• An operator cannot seek rights over existing apparatus as if it were 'land' for the purposes of the New Code.
• Para 23 of the Code contains no restrictions on the terms that may be imposed by the Tribunal, although when considering what is appropriate, the Tribunal will take into account the overall scheme of the New Code and the need to be fair to both parties.

Impact of the case

The decision is reassuring for Landowners, as the Tribunal confirmed that an operator cannot seek more expansive rights under a new code agreement than those stated in the original para 20 notice.

The Tribunal's decision does, however, suggest that the process of negotiating the new terms of the Code agreement should be open and fluid and not rigidly confined to the terms proposed in para 20 notice.

The decision emulates the general approach to Court applications following service of section 25/25 notices under the Landlord and Tenant Act 1954.