A new Electronic Communications Code 2017 came into force on 28 December 2017. It contains complex transitional provisions, which have just been tested for the very first time. The rooftop equipment in Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd and another [2019] UKUT 338 (LC) was installed pursuant to an agreement that created a tenancy for the purposes of the Landlord and Tenancy Act 1954 – and the question that arose was this. Can the Upper Tribunal impose Code rights under Part 4 of the Electronic Communications Code for the benefit of an operator who is already in occupation pursuant to a tenancy that is being continued after its contractual expiry date under section 24(1) of the Landlord and Tenant Act 1954?
The operator claimed to have the right to choose between applying for a new tenancy under the 1954 Act or for the imposition of an agreement under Part 4 of the Code. But the landowner disagreed. It argued that the only way for the operator to obtain new rights was by seeking a new tenancy under the 1954 Act.
The Upper Tribunal noted the Law Commission’s recommendation, in its report “The Electronic Communications Code” (Law Com No 336), that the new Code should not apply retrospectively to existing agreements – and the guidance given by the Court of Appeal in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755; [2019] PLSCS 201, which constituted an insurmountable obstacle to the operator’s arguments.
In Compton Beauchamp, Lord Justice Lewison explained that Code rights can only be conferred by occupiers and that operators in situ have very limited rights under Part 4 of the Code. They can serve notices seeking interim or temporary rights – but must resort to 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: paragraph 6(2) Schedule 2 Digital Economy Act 2017. 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 Part 5 to renew or modify the tenancy.
The Tribunal found it impossible to see how a tenancy continuing under the 1954 Act would come to an end if the Tribunal were to impose a new Code agreement on the parties. The Tribunal accepted that the imposition of a licence might be compatible with the continuation of a tenancy under the 1954 Act. But Parliament could not have intended an operator to have both – and the Tribunal observed that an operator’s continuing exposure to the less favourable regime of the 1954 Act was simply a consequence of Parliament’s acceptance of the Law Commission’s recommendation that the new Code should not apply retrospectively.
How then does an operator transition from the previous regime to the new Code? The Tribunal answered this question for us. The occupier must first apply to the county court for a new tenancy under the 1954 Act. If entered into for Code purposes, the legislation excludes the new tenancy from the 1954 Act and paragraph 34(8) of the Code deems it to be an agreement under Part 2. So, when the end of the new tenancy approaches, the operator can give six months’ notice to terminate under paragraph 33 and can then seek renewal under Part 5 of the Code.
Allyson Colby is a property law consultant
