On Tuesday 1 to Thursday 3 February 2022 Martin Thomas, our property litigation partner, will lead a team bringing two appeals to the Supreme Court on behalf of Cornerstone Telecommunications Infrastructure Limited ("Cornerstone"). This landmark legal case will clarify the circumstances where a tribunal can grant a telecommunications operator/provider of telecommunications infrastructure (both can be "Operators" for the purposes of the legislation) rights under the Electronic Communications Code 2017 ("the New Code").
This litigation is therefore significant for both landowners who host, or may be required to host, electronic communications apparatus on their land, as well as Operators themselves.
The hearing will be livestreamed on the Supreme Court's YouTube channel throughout the proceedings between 10.30am and 4pm.
Gowling WLG's full team is: partner Martin Thomas, associate Emilie Beek, principal associate Senay Nihat, associate Rachel Bright, and trainee solicitor May Yuen.
What is the New Code?
The New Code came into effect in December 2017, replacing the existing Code ("the Old Code"). The New Code is a set of rights designed to facilitate the installation and maintenance of electronic communications networks, by conveying rights to Operators to install and maintain electronic communications apparatus ("ECA") on, under or over land.
One purpose of the New Code was to make it easier for Operators to get rights to install ECA. Unfortunately, as these appeals demonstrate, this has not been the case in practice.
Why is this important?
Operators, like Cornerstone, must be able to install, maintain and upgrade ECA, to support nationwide connectivity and allow for developments, such as the rollout of 5G.
However, instances where Operators can seek installation of ECA on the property of a landowner can be controversial - many landowners do not want ECA which could block future development (particularly in built-up areas), or may otherwise resist giving Operators access to their land, or dispute the level of rent payable in return for access.
The issues in the appeals go to the "essential principle" that:
- A Tribunal can impose an agreement under the New Code, granting code rights to Operators in respect of land;
- Agreements under Part 4 of the New Code must be between Operator and occupier;
- Therefore if the Operator is in occupation of land, they are both Operator and occupier and cannot confer rights on themselves;
- Therefore Operators in occupation cannot make use of Part 4 of the New Code (in limited circumstances they can seek an agreement under Part 5 of the New Code, but this is not always available).
The Court of Appeal recognised this essential principle in CTIL v Compton Beauchamp [2019] EWCA Civ 1755, CA. Two subsequent cases brought by operators seeking new agreements under Part 4 of the New Code, albeit on different facts, were refused on the same basis - they were occupiers as per Compton Beauchamp. Therefore, these three Court of Appeal decisions are now appealed to the Supreme Court.
The issues before the Supreme Court are:
| Case being appealed | The problem | Question for the Supreme Court |
| Cornerstone Telecommunications Infrastructure Ltd (Appellant) v Compton Beauchamp Estates Ltd 2019 EWCA Civ 1755 |
This case involved three parties:
The Court of Appeal found that, under Part 4 of the New Code, there was no power to impose an agreement on a landowner where a third party - neither the landowner nor the operator- was in occupation of the site. Here, the third party was the infrastructure company in occupation. This is not uncommon. |
Can the Upper Tribunal confer rights, under the Code, in relation to a particular site, on the Claimant in circumstances where a third party, namely Vodafone, is currently in occupation of the site? |
| Cornerstone Telecommunications Infrastructure Ltd (Appellant) v Ashloch Ltd and another [2021] EWCA Civ 90 |
This case involved two parties:
The Operator sought to renew its Code agreement. However the Court of Appeal found that, because it occupied under a protected tenancy, the Operator had to renew under the 1954 Act (with different valuation assumptions, which could lead to a higher rent payable). |
Can the Tribunal confer rights over land in favour of an operator under Code, where that operator has a Landlord and Tenant Act 1954 (LTA 1954) protected tenancy and is in occupation of the land? |
| On Tower UK Ltd (formerly known as Arqiva Services Ltd) (Appellant) v AP Wireless II (UK) Ltd [2020] UKUT 0195 (LC) |
On Tower was an Operator occupying land under a lease contracted out of the 1954 Act, and continued in occupation following expiry of the contractual term:
|
Regardless of whether the operator is in occupation, are there deeming provisions in the New Code that allow the operator to make use of Part 4 of the New Code to seek a fresh agreement? |
Other law reform
Interestingly, whatever view taken by the Supreme Court, it looks certain that important changes will be made to the Code (although it's unclear when this will be). This is because a government consultation on the Code has recently come to an end, and the resulting proposals indicate several changes will be introduced.
On 24 November 2021, the government published its response to the consultation in its proposal – Access to land: consultation on changes to the Electronic Communications Code.1 While these changes will not deal with all the issues raised in the appeals (and encompass other changes), there is recognition that the Code is not working for Operators in the way intended, and they should not be shut out of the New Code where they are in situ under an expired agreement granted under the Old Code.
Therefore, both landowners and operators should be aware that, notwithstanding any court intervention, the operation of the Code is likely to change.
If you have any queries or to find out more about our property litigation team, please contact Martin Thomas.
Footnote
1. Access to land: consultation on changes to the Electronic Communications Code