The Electronic Communications Code 2017, which came into force on 28 December 2017, contains complex transitional provisions dealing with agreements that were already in existence when the Code took effect, which have just been tested in the Court of Appeal for the first time. The question that the court was asked to consider – in Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd [2021] EWCA Civ 90 – was: could the tribunal impose rights under the new Code for the benefit of an operator in occupation pursuant to a tenancy that was granted before the introduction of the Code, which was being continued after its contractual expiry date pursuant to section 24(1) of the Landlord and Tenant Act 1954?
It would have been more advantageous for the operator to acquire rights under the Code than to renew under the 1954 Act. But the Upper Tribunal decided that it was unable to assist because the Code contains provisions stating that it does not apply retrospectively. Indeed, government statements had made it clear that it envisaged that it might take as long as 15 years to complete the transition to the Code.
How then does an operator transition from the previous regime to the new one? The tribunal indicated that the occupier must apply to the county court for a new tenancy under the 1954 Act. If entered into for Code purposes, the legislation provides that the new tenancy will not be protected by the 1954 Act and paragraph 34(8) of the Code deems it to be an agreement for the purposes of the new Code. So, when the new tenancy ends, the operator can then seek renewal under the Code.
The tribunal’s decision was informed by the guidance given by Lord Justice Lewison in the Court of Appeal in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755; [2019] PLSCS 201.
On appeal, Cornerstone suggested that, if and in so far as the decision in Beauchamp prevented the tribunal from imposing Code rights on the landowner, that decision was wrong. And it was Lord Justice Lewison who replied for the Court of Appeal, remarking, somewhat dryly, that the operator was seeking to resurrect arguments that were unsuccessful in Beauchamp and that its submissions were really arguments about what the law should be, rather than about what it is.
The Court of Appeal agreed with the tribunal’s reasoning. The Code directs operators in situ to the provisions in Part 5 of the Code when seeking to renew. And the transitional provisions state that Part 5 does not apply to subsisting agreements protected by the Landlord and Tenant Act 1954. Consequently, a tenant with a 1954 Act tenancy, which was not contracted out and which had not expired or which was continuing under the 1954 Act when the new Code commenced, cannot make use of the Code to renew or modify its tenancy. Furthermore, if the law were otherwise, there would be potential for conflict and confusion between the Code and the 1954 Act regime, which cannot have been what parliament intended.
Lord Justice Lewison accepted that the transitional provisions may leave some operators out in the cold – notably those with tenancies at will that are not in writing and possibly those holding under periodic tenancies protected by the 1954 Act who cannot take the initiative to renew their tenancies themselves. But that was the fault of the transitional provisions – and not the Code.
Allyson Colby, property law consultant
