Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates

Electronic Communications Code – Jurisdiction – New Code agreement – Telecommunications mast site subject to operator’s tenancy at will following expiry of lease – Tenancy terminated – Whether Upper Tribunal having jurisdiction to require freeholder not in occupation of land to confer Code rights on operator when another operator in occupation exercising Code rights – Appeal dismissed The appellant was a joint venture formed by Vodafone and Telefonica (independent and unconnected companies) to own and manage a combined portfolio of telecommunications sites contributed by each of them. Vodafone owned a telecommunications mast situated off Old Wharf Road at Longcot, about six miles east of Swindon town centre on land belonging to the respondent under a lease which granted it the right to install and use the mast and ancillary apparatus. It shared the use of the mast with Telefonica. After expiry of the lease, Vodafone remained in occupation. The respondent served notice to quit but Vodafone asserted a continuing right to occupy by virtue of the Code in Schedule 2 to the Telecommunications Act 1984 which was in force at the date of the lease and prevented the landowner from enforcing the removal of the apparatus without a court order. The appellant made a reference to the Upper Tribunal (UT) seeking the imposition of an agreement under para 20 of the new Electronic Communications Code (introduced by the Digital Economy Act 2017) for a lease by the respondent in favour of the appellant to allow it to occupy the mast and exercise the full range of code rights. Notice was served on the appellant only. It was neither given to nor served on Vodafone. The UT held that because it was not in occupation of the land, the respondent could not have conferred code rights by agreement under para 9 of the Code. It followed that the UT had no jurisdiction to make the order sought: [2019] UKUT 107 (LC); [2019] PLSCS 65. The appellant appealed contending that the “relevant person” for the purposes of para 20 was either: (i) the occupier of the land, the owner of the freehold estate, or the lessee of the land who had the “title” to grant the rights sought; (ii) the person with the right to control access to the site, rather than a person with physical presence in fact; or (iii) the person entitled to require the operator to remove its apparatus. Held: The appeal was dismissed. (1) It was clear from para 10 that code rights might be granted by an occupier who had no interest in the land. Paragraph 10(4) extended to any person with an interest in the land other than the occupier himself or a person who was already bound by the code right by virtue of para 10(2). A code right conferred by an occupier without an interest in the land would only bind a person with an interest in the land who agreed to be bound by it. In order to expand the class of person who was bound by the conferring of a code right, the operator would have to apply to the UT. In that situation, the operator would already have the rights conferred upon it by the agreement with the occupier. Under para 9 of the Code, the only person who could agree to confer a code right on an operator was the occupier. Paragraph 20 permitted an application to the UT where “the relevant person does not agree … to confer or be otherwise bound by the code right”. If the “relevant person” for the purpose of conferring code rights was someone other than the occupier, the effect of para 9 was that that person could not agree to confer the code right. In that situation, it was inevitable that an application would have to be made to the UT. It was unlikely that Parliament would have legislated so as to compel an application to the UT with no possibility of agreement. (2) Under para 105(5) and (6) of the Code, if land was unoccupied, the occupier was taken to be the person who exercised powers of management or control. No physical presence was required. The reference meant a person who actually exercised such powers, rather than simply a person who had the right to do so. If there was no such person, the concept extended to a person with an interest in the land who would be prejudicially affected by the exercise of a code right. Therefore, the UT were correct to hold that whether a person was an occupier for the purposes of the Code was a question of fact rather than legal status; it meant physical presence on and control of the land. The Code clearly envisaged that a sitting operator might enter into an agreement conferring new or varied code rights or apply to the UT for interim or temporary code rights. An operator in situ was principally dealt with by Part 5 of the Code The appellant was not the operator in situ. Vodafone was and it had made no application either under Part 5 or under para 20. Paragraphs 26 and 27 of the Code dealt with interim and temporary code rights respectively. Nothing in those paragraphs undermined the essential principle that code rights could only be conferred by agreement with the occupier. An agreement imposed either under para 26 or 27 took effect as an agreement between the operator and the occupier. (3) The procedure in para 40 of the Code enabled a landowner, in certain circumstances, to give notice to an operator requiring the removal of apparatus. If the operator did not agree, then the landowner might apply to the UT for an order requiring removal. But para 40(8) prevented the making of an order if an application under para 20 had been made and had not been determined. Paragraph 40(8) presented a barrier to the contention that the respondent was currently entitled to require Vodafone to remove its apparatus. Moreover, it was not in fact the occupier of the land upon which Vodafone’s apparatus stood. Vodafone’s apparatus was not merely on the land. It was enclosed by a fenced compound. The inevitable inference was that Vodafone had possession of the land within the fence; and was in fact exercising powers of control over it. Stephanie Tozer QC with Myriam Stacey (instructed by DAC Beachcroft LLP) appeared for the appellant; Wayne Clark with Fern Horsfield-Schonhut (instructed by Wilmot & Co Solicitors LLP, of Cirencester) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd