Telecommunications – Electronic communications code – New agreement – Preliminary issues – Claimant seeking to renew code rights where concurrent lease of reversion to code agreement granted – Whether head lessor or concurrent lessee proper party to confer new code rights – Whether tribunal entitled to order parties to enter into tripartite agreement – Preliminary issues determined accordingly
The first respondent was the freehold owner of the Old Fire Station at Market Street, Bingley. In 2003, the claimant was granted a lease of parts of the tower and rights over other parts of the building by the then owner of the freehold (P) as a site for its electronic communications apparatus. The lease expired in 2018 and the claimant asked the tribunal to make orders under the new Electronic Communications Code for the renewal of its rights for a further 10 years. The claimant served a series of notices on the respondents under paragraphs 20 and 33. They were served in the alternative, intending to cover all possible permutations.
In 2018, after the commencement of the new Code but before the expiry of the claimant’s lease, a previous freeholder granted a concurrent lease of parts of the tower to the second respondent, subject to and with the benefit of the claimant’s lease. The concurrent lease was for a term continuing until 2058 and the second respondent became the claimant’s immediate landlord.
Neither of the respondents objected to the renewal of code rights, but the parties disagreed about how it should be achieved. The claimant considered that only the first respondent could grant it new rights under the Code, which should be made binding on the second respondent by an order of the tribunal. The second respondent said it was the only party capable of granting new rights to the claimant and that they should then be made binding on the first respondent.
The tribunal was asked to determine preliminary issues as to what orders the tribunal had power to make.
Held: The preliminary issues were determined accordingly.
(1) Schedule 2 to the Digital Economy Act 2017 contained transitional provisions explaining how the Code was to apply to agreements already in existence to which the old Code applied (Schedule 2 to the Telecommunications Act 1984). The application of the Code depended on whether an agreement was a “subsisting agreement”, which mainly covered agreements in writing for the purposes of paragraphs 2 or 3 of the old Code. Broadly, the effect of the transitional provisions was that subsisting agreements took effect as if they were agreements under Part 2 of the new Code, subject to some modifications.
Here, it was to be inferred from the original 2003 agreement itself that P was the occupier for the time being when the agreement was granted. Paragraph 2(1) of the old Code and paragraph 2(1) of the transitional provisions were satisfied. On that basis the 2003 agreement was a subsisting agreement on the commencement of the Code on 28 December 2017.
(2) Paragraph 10(2) of the Code identified three categories of persons who would be bound by a code right apart from the occupier who conferred that right: (i) successors in title to the interest in the land of the occupier who conferred the code rights; (ii) those with an interest in the land derived out of the original occupier’s interest and which was created after the code rights were conferred; and (iii) those with rights of occupation not amounting to an interest in the land which were granted by a person already bound by the code rights (which were necessarily granted after the code rights were conferred).
Part 4 of the Code dealt with the power to impose agreements. Paragraph 20 distinguished between agreements imposed by the tribunal on occupiers of land, and agreements imposed on others who had been asked by an operator to agree to be bound by a code right exercisable by the operator. Both classes were “relevant persons” defined in paragraph 20(1) and used throughout Part 4, but they received separate consideration in paragraphs 20, 21 and 23 and their place in the scheme of the Code was quite different. The basic principle was that only occupiers of land could confer code rights, while others with an interest in land, or rights over it, might only be bound by code rights.
Part 5 dealt only with the termination, modification and renewal of agreements between the original parties to the agreement and their successors in title. It did not apply where the operator and the occupier of the land were not both parties to the agreement or their successors. In those circumstances, there was no obstacle to an operator making use of Part 4.
(3) In the light of the conclusion in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2022] EGLR 28 that an operator was not prevented from relying on Part 4 of the Code simply because it was the occupier of the land in respect of which it sought a right, the same approach should be applied to paragraph 2(1) of the old Code. The person whose agreement was required to confer an old code right was the person who would have been the occupier if occupation by the operator seeking the right was ignored.
If the claimant’s occupation of the site was ignored, as Compton Beauchamp required, the second respondent was “the occupier for the time being” of the tower and the party identified in paragraph 105(1) of the Code as the occupier. The second respondent was therefore in a position to enter into an agreement under paragraph 9 of the Code. It also had sufficient rights under the concurrent lease to enable it to grant easements over the rest of the building equivalent to those enjoyed by the claimant under the original agreement. The second respondent, as the occupier, was in a position to grant new rights, or to have an agreement imposed upon it by the tribunal under Part 4.
In contrast, the first respondent was not the occupier of the tower for the purpose of any request by the claimant for new code rights. Therefore, it was not in a position to confer new code rights on the claimant and any agreement between them would not be a code agreement to which the remaining provisions of the Code would apply.
(4) Despite the original agreement having reached its contractual conclusion, Part 5 was not available; the conferring party under the original agreement was no longer in a position to confer code rights, nor was its successor in title, because the power to confer code rights now rested with the concurrent lessee. The machinery of Part 5 did not accommodate those circumstances because it allowed for participation only by the original conferring party and its successors.
In those circumstances, there was no obstacle to an operator making use of Part 4. However, Part 4 was about the imposition of new agreements and it contained nothing which would assist a site provider barred from using Part 5.
The tribunal had jurisdiction to impose an agreement on the claimant and the second respondent conferring code rights under paragraph 20 of the Code, but it had no jurisdiction to order any of the parties to enter into a conferring agreement under paragraph 34. However, an order could be made making code rights conferred on the claimant by the second respondent binding on the first respondent.
(5) The tribunal had jurisdiction to order a tripartite agreement by which rights were conferred by one party on another and made binding on a third party. The agreement was in general terms and provided that each site provider was to confer such rights as it was able to confer and otherwise to be bound by such rights as the other was able to confer. It might be easier for the agreements to be structured bilaterally if that was what the parties preferred.
Graham Read QC (instructed by Osborne Clarke LLP) appeared for the claimant; Wayne Clark and Fern Schofield (instructed by Eversheds Sutherland LLP) appeared for the respondents.
Eileen O’Grady, barrister
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