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Do you have telecommunications masts or other apparatus on your land?

If so the Electronic Communications Code 2017 (the Code) governs how that is dealt with including rent and restrictions on removal.  Code rights can be enforced against a landowner or an occupier by the Lands Tribunal for Scotland (which has jurisdiction for Code rights cases in Scotland).  The two cases discussed below are most likely to be persuasive if determining a similar issue north of the border.

The legislation which came into force last year has had an impact across all of the UK and so far we have seen a number of cases involving the legislation in England only.  Both cases concern a joint venture company, Cornerstone (formed by Vodafone and Telefonica) who applied for an order from the Upper Tribunal to impose Code rights on landowners in relation to sites that continued to be occupied by Vodafone following the expiry of previous Code agreements.

In Cornerstone Telecommunications Infrastructure Limited v. Keast [2019] UKUT 116 (LC) (Keast) a number of questions were addressed:

  1. Can an operator seek Code rights over land on which there is already electronic communications apparatus?

Under the Code an operator can only seek Code rights over “land”, (the definition in paragraph 108 of the Code excludes electronic communications apparatus). This prevents one operator seeking to assert Code rights against another operator’s electronic communications apparatus.  So, for example, Vodafone cannot seek code rights over electronic communications apparatus belonging to O2.

Under common law if something is fixed onto land it may become part of the land itself.  Applying this well established principle, lawyers for the landowner argued that, because Vodafone’s existing electronic communications apparatus was affixed to the land, it had become part of the land and therefore the operator was precluded from claiming Code rights against that land because it consisted of, in part, electronic communications apparatus belonging to another operator.

The Upper Tribunal dismissed this argument under paragraph 101 of the Code – any electronic communications apparatus installed pursuant to Code rights, no matter how firmly affixed to the land, does not by virtue only of that attachment become land.  Accordingly, the Upper Tribunal took the view that the operator was not seeking to assert Code rights against electronic communications apparatus.   Effectively they dismissed the notion that the electronic communications apparatus has become part of the land.   (This sets the electronic communications apparatus apart from other fixtures (such as sheds or buildings) that would normally become part of land.)

The landowner’s lawyers argued further by putting forward the proposition that, if the electronic communications apparatus did not form part of the land, the operator could only claim Code rights over such part of the land as was not occupied by the electronic communications apparatus.  This proposition was dismissed and the Upper Tribunal which decided that “the prohibition of the acquisition of Code rights over electronic communications apparatus does not mean that it is impossible to acquire Code rights over land where electronic communications apparatus is present”.  So new it would appear that Code rights could be applied even if the land is occupied by existing electronic communications apparatus.

  1. Does the Upper Tribunal have jurisdiction to impose positive obligations on a landowner when imposing Code rights?

Interestingly the Upper Tribunal refused to rule that it was beyond its jurisdiction to impose positive obligations on a landowner when imposing Code rights.   It stated that “all draft terms can be considered a matter of discretion” and therefore the operator “may have an uphill struggle to persuade the tribunal that some of them are appropriate”.  This would suggest that the question will be dealt with on an individual basis at the complete discretion of the Tribunal and it may be difficult for the operator to persuade the Tribunal to impose positive obligations on landowners.

  1. Could Cornerstone claim Code rights where Vodafone’s lease of the site was continuing?

The Upper Tribunal made no decision on this question but it has been answered in part by the second case below.

In the second case, (Cornerstone Telecommunications Infrastructure Limited v. Compton Beauchamp Estates Limited [2019] UKUT 107 (LC) (Beauchamp)) the question asked of the Upper Tribunal essentially the same as question 3 above?

Paragraph 9 of the Code makes it clear that where there is an existing agreement covering Code rights then Code rights can only be conferred by the occupier of the land in question.  This is factual – essentially the question is who is in occupation at the relevant time?  It is important to note that a legal right to possession is not enough where someone else is in actual occupation.

It is not clear whether the same principle applied to Code rights imposed by the Upper Tribunal. The lack of clarity arises because Paragraph 20 refers to an agreement being imposed upon a “relevant person” rather than an occupier or landowner.

The Upper Tribunal concluded that paragraph 20 “refers to a ‘relevant person’ because two different types of order may be made by the tribunal” under that provision. The two types of order that can be made are the imposition of an agreement:

  • by which Code rights are conferred – this can be imposed on an occupier of the land in question; and
  • to be bound by Code rights – which can be imposed on someone else.

The Upper Tribunal offers further clarification in saying that it could “compel the grant of new rights by a site owner to an operator which is itself in occupation but it cannot compel the grant of rights by a person who is not in occupation to an operator who is not in occupation”. Accordingly, the Upper Tribunal does not have jurisdiction to impose an order on the landowner, conferring Code rights on the operator because the landowner was not in occupation.

The decision in the first case that an operator can seek Code rights against a site on which electronic communications apparatus already exists will no doubt encourage operators, whilst at the same time disappoint landowners.

However, this decision needs to be reconciled with second case which discussed the notion that an order can only be made against the occupier of land to impose Code rights.   In light of this it may be that we will see more co-operation between operators and existing operators (occupiers) in proceedings involving Code rights and both the operators and the landowners will need to ensure they are aware of who is in occupation of the land in question at the relevant time of any proceedings.

If you are considering entering into any agreements involving electronic communications apparatus please contact us for advice at the outset.

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