A new Electronic Communications Code 2017 came into force on 28 December 2017. It sets out the basis on which operators can install and maintain electronic communications apparatus on, over and under land.
It is still in its infancy, and Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755; [2019] PLSCS 201 is the first Court of Appeal decision on the effect of the Code.
The litigation concerned a telecommunications mast standing on a concrete base in a fenced compound. The mast and the apparatus on it were placed there by Vodafone, pursuant to a lease that was contracted out of the Landlord and Tenant Act 1954, which had expired.
Vodafone (which shared the use of the mast with Telefónica) remained in occupation as a tenant at will until the landowner served a notice terminating that arrangement too, together with a notice under paragraph 21 of the old Code requiring Vodafone to remove its apparatus. Vodafone then served a counternotice under paragraph 21(4) of the old Code preventing the removal of the mast without an order of the court.
Meanwhile, Cornerstone, a joint venture company formed by Vodafone and Telefónica, served a notice on the landowner requiring it to confer Code rights on the company. The key objective of the operators was to achieve a seamless transition from Vodafone to Cornerstone. But should Cornerstone have served its notice on Vodafone, because it was in occupation and paragraph 9 of the Code provides for Code rights to be conferred by agreement between “the occupier… and the operator”?
The Upper Tribunal answered the question in the affirmative. Vodafone was the only person who could confer rights by agreement, or have them imposed on it by an order of the tribunal. The judge suggested that, instead of serving its notice on the landowner, Cornerstone should have reached an agreement with Vodafone for Vodafone, as the occupier, to confer Code rights on Cornerstone – and should then have applied to the Upper Tribunal for an order binding the landowner.
The Court of Appeal has endorsed the decision. The only person who can agree to confer Code rights on an operator is the occupier – and it was clear, from the way the Code was drafted, that Code rights may even be granted by an occupier without any interest in the land. Who else would be bound by such a grant was a different matter.
The court dismissed the landowner’s fear that Cornerstone would negotiate a “sweetheart deal” with Vodafone. The landowner would not be bound by such an agreement, and paragraph 23 of the Code enables the Upper Tribunal to modify an operator’s proposals. So, if an operator were to enter into a sweetheart deal with an occupier, the Upper Tribunal could modify it.
What then is the position if an operator is already in situ and wishes to renew or vary its Code rights? Lord Justice Lewison explained that occupiers cannot confer Code rights on themselves and that Part 5 of the Code was designed to accommodate renewals.
It introduces the concept of a “site provider” and contains a deeming provision that ensures that the Code applies “as if” the parties were the operator and the occupier. However, Part 5 would not assist Cornerstone on the facts of this case, because it was not the operator in situ; Vodafone was.
