Unless the sole purpose of a building is to enclose electronic communications apparatus (ECA) the structure is land, not ECA, and so capable of being subject to the Electronic Communications Code set out in Schedule 3A to the Communications Act 2003.
The Upper Tribunal (Lands Chamber) has considered this issue when determining preliminary issues between the parties in On Tower UK Ltd v British Telecommunications plc [2024] UKUT 51 (LC).
The case concerned the telephone exchange on Kenton Road in Harrow, north London, one of thousands which, due to technological advances, the respondent plans to close.
The ground floor comprised offices, store rooms, a kitchen, dining/common room and games room.
The first and second floors used to house heavy switching equipment which had become obsolete. The building was tired and largely empty.
In January 2021 the respondent granted the claimant a lease of a number of properties including part of the roof of the Kenton Road site for the installation of ECA for a term expiring in November 2030.
The lease contained early termination provisions which the respondent triggered by serving notice in October 2022, intending to sell the site for redevelopment.
At the same time, it served a notice under paragraph 31 of the Code without prejudice to its contention, that the site lease did not grant code rights and so was not a code agreement because the building’s sole purpose was to enclose ECA.
The Code provides that where Code rights – to install, keep and maintain ECA on under or over land – are granted by a site provider the operator has considerable security of tenure.
However, “land” does not include ECA and buildings where the sole purpose is to enclose other ECA are also classed as ECA.
The Tribunal decided that on a literal and purposive construction of the statute it was never the sole purpose of the Kenton Road site to enclose ECA and so the site lease conferred Code rights and was a Code agreement.
The early termination notice was of no effect and the site lease continued.
The Tribunal also concluded that it was not necessary for a valid break notice to have been served for a valid paragraph 31 notice to be served, merely that the termination date stipulated was a minimum of 18 months and fell after the date when the lease could have been brought to an end by a landlord’s break notice.
The paragraph 31 notice was valid. The parties must now agree or the Tribunal would determine whether the respondent could make out the grounds relied upon for termination.
Louise Clark is a property law consultant and mediator
