Judges at the Supreme Court today (1 February) started to hear the first in a series of legal challenges to the UK’s Electronic Communications Code, the legislative framework that governs dealings between landowners and government-approved installers of telecommunications equipment.
The code, which has been in force since 2017, was intended to make it easier for telecoms companies to roll out 5G and other next-generation infrastructure, by giving them rights to gain access to property to install or maintain network infrastructure, and to get disputes resolved in good time by a specialist judge at the Upper Tribunal (UT).
Instead, the UT rulings have led to appeals that have escalated though the courts and are now ending up at the Supreme Court.
At the heart of most of the cases is tension between landowners, which want to minimise disruption and get fair compensation for the use of their land, and telecoms companies, which want to expand and upgrade networks.
Today’s Supreme Court hearing, which is set to last three days, rolls three cases into one. These cases are Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd; Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd and another; and Arqiva Services Ltd vAP Wireless II (UK) Ltd.
In Compton, the Court of Appeal ruled that the UT couldn’t impose an agreement on a landowner where the landowner wasn’t in occupation of the relevant site. Ashloch relates to protected tenancies under older legislation, and Arquia relates to an attempt to the transition of an agreement made under the 2003 Communications Code to the 2017 code.
The hearing was opened by John McGhee QC, representing Cornerstone.
“As you’ll be aware, this is the first occasion that this court has had the opportunity to consider the scope and effect of the electronic communications code or its predecessor.
“The new code was enacted because the government recognised the importance for economic growth of public access to high speed fixed lines and mobile network services… it arose out of dissatisfaction with the old code that was making the roll-out of new technology more difficult. And therefore the new code was enacted specifically to promote the investment in physical infrastructure necessary for network services.”
He said that, rather than “seeking to appeal to broad issues of policy”, he planned to spend “95% of my submissions” talking about details of the new code, relevant provisions of the old code, and transition arrangements.
He said it was his argument that a telecoms company that has electronic communications apparatus on land isn’t deemed to be ‘occupier’ under the code, which means it can claim rights enforced by the UT.
The hearing is scheduled to last three days, with judgment handed down at a later date.
Cornerstone Telecommunications Infrastructure Ltd (Appellant) v Compton Beauchamp Estates Ltd (Respondent)
Cornerstone Telecommunications Infrastructure Ltd (Appellant) v Ashloch Ltd and another (Respondents)
On Tower UK Ltd (formerly known as Arqiva Services Ltd) (Appellant) v AP Wireless II (UK) Ltd (Respondent)
Supreme Court, 1 February 2022
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