The Court of Appeal has ruled in favour of landowners in a blow to telecommunications companies keen to roll out 5G and other services.
Cornerstone v Ashloch is the latest in a series of rulings on an issue that is heading, via one ruling or another, to the Supreme Court.
This particular case concerns the roof of a building in Birmingham called Windsor House. Cornerstone, a telecoms joint venture between Vodafone and Telefonica, used the roof for telecoms equipment and was a tenant under a tenancy granted in 2002 and governed by the 1954 Landlord and Tenant Act.
Cornerstone applied to a property tribunal to be granted rights under the 2017 Communications Code that would free it from some of its obligations under the 1954 act, and make it easier for them to use the land to improve their infrastructure.
The landowner opposed it. The Upper Tribunal ruled that it didn’t have the right to impose new code obligations on the landowner and, in a ruling handed down today, the Court of Appeal agreed.
The issue is hugely complicated. Although the updated code was designed to make it easier for telecoms companies to improve infrastructure by freeing them from outdated regulations, Pinsent Masons partner Alicia Foo said they are finding it increasingly difficult to get the opportunity to apply the new rules.
“At the heart of it is a balance between the companies and the landowners, and the balance is just not working any more,” Foo said, adding that the issue had become “mired in litigation”.
In today’s ruling, Lord Justice Lewison acknowledged the tension, saying that “many of the submissions about the supposed defects (at least from the point of the view of the operator) in the legislation are really submissions about what the law ought to be, rather than about what it is”.
And, later in the ruling, Lord Justice Davis, highlighted the difficulty of the issue.
“Unlike all the other judges and advocates who have been involved thus far in this case, I cannot claim to have had any prior familiarity with the Electronic Communications Code,” he said.
“No doubt the many areas which it needed to cover, and the concepts with which it needed to grapple, are fiendishly complex. All I can say is that the code itself is, to my way of thinking, fiendishly complex.”
He said he was “not much moved” by Cornerstone’s arguments.
“What was said was, in essence, that operators such as Cornerstone were operating to the public benefit in providing updated and efficient telecommunications services; whereas, so it was said, a body such as APW [the landowner] had inserted itself into the title arrangements with a view, in effect, to extracting for itself a handsome commercial ransom. But the actuality is that both parties are commercial concerns operating for profit.
“In truth, the underlying competing considerations reflect the fundamental dichotomy between the provision of communication services for the public benefit on the one hand and the need for acknowledgement of private property owners’ rights on the other hand; and the delicate balance that needs to be stuck and maintained between the two.”
Thekla Fellas, a partner at Eversheds Sutherland, said the ruling added “clarity”.
“In dismissing the appeal, the Court of Appeal has upheld the Upper Tribunal’s decision that an operator in situ cannot seek a new code agreement under paragraph 20 of the Code and confirmed that existing agreements with the protection of Part II of the Landlord and Tenant Act 1954 are to be renewed under that Act,” she said.
“This provides much-needed clarity for landowners of existing telecommunications sites faced with an operator in situ seeking a new code agreement. The judgment is clear that the code is not to be applied retrospectively.”
Eversheds acted for the second respondent, AP Wireless.
Cornerstone Telecommunications Infrastructure v (1) Ashloch Ltd (2) Ap Wireless Ii (Uk) Ltd
Court of Appeal (David LJ, Lewison LJ, Arnold LJ), 29 January 2021
Jonathan Seitler QC and Oliver Radley-Gardner (instructed by Gowling WLG (UK) LLP) appeared for the appellants. The first respondent was neither present nor represented. Christopher Pymont QC and Wayne Clark (instructed by Eversheds Sutherland International LLP) appeared for the second respondent.
