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 at will terminated – Whether site owner in occupation – Whether tribunal having jurisdiction to impose new Code agreement on site owner and third-party claimant if site owner not in occupation – Reference dismissed The claimant 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. Each company owned half the shares in the claimant and their intention was that each should continue to provide their own separate services using infrastructure provided to them by the claimant. An issue arose concerning a telecommunications mast situated off Old Wharf Road at Longcot, about six miles east of Swindon town centre on land belonging to the respondent and forming part of Galleyherns Farm which comprised about 188 acres and was within a much larger estate of about 10,000 acres owned by the respondent. Until March 2014, Vodafone had been in occupation of the site pursuant to a lease granted in 2004. Its status changed and it became a tenant at will. The tenancy at will was brought to an end by a notice to quit served by the respondent on 20 October 2017, although Vodafone remained in occupation formally asserting a continuing right to occupy. Possession proceedings were commenced in the county court in 2017 when negotiations for a new lease broke down. The respondent claimed possession of the site from Vodafone whose defence was that it was in occupation under a periodic tenancy with security of tenure under the Landlord and Tenant Act 1954. The claimant made a reference to the Upper Tribunal seeking the imposition of an agreement under the new Electronic Communications Code (which came into force on 28 December 2017 and replaced the original telecommunications code in schedule 2 to the Telecommunications Act 1984). The proposed agreement was a lease by the respondent in favour of the claimant which, if granted in the terms sought, would allow the claimant to occupy the mast site to the exclusion of the respondent and all others and to exercise the full range of Code rights. Rights over the site were first requested by a notice given by the claimant’s solicitors to the respondent under para 20 of the Code on 19 June 2018. The reference gave rise to an issue, amongst other things, whether the tribunal could make an order pursuant to para 20 of the Code imposing an agreement between the claimant and the respondent where a third party, Vodafone, was the occupier for the time being of the site. Held: The reference was dismissed. (1) Paragraph 20 of the Code laid down a procedure for the imposition of Code rights which the tribunal was not free to depart from. That procedure required the operator to identify in its notice, under para 20(2) inviting agreement, both the Code right and “all of the other terms of the agreement that the operator seeks”. It was those rights alone which the operator might apply to the tribunal to have imposed on the unwilling occupier of the land. The right to apply to the tribunal was triggered by the refusal of the relevant person to confer or otherwise be bound by the Code right sought. The relevant person would either be an occupier who was to be compelled to confer rights or a person who was to be bound by rights conferred by another. The order which the tribunal might make under para 20 was either one which conferred the code right on the operator or provided for that right to be made binding on the relevant person (para 20(4)). (2) The clear effect of the procedure was that, if the relevant person had not been asked to agree to confer the rights or to be bound by them, no application might be made in respect of them. If the claimant’s notice had been framed under para 20(1)(a), requiring rights to be conferred on it by the occupier, the tribunal would not have jurisdiction to make an order under para 20(4)(b) providing for the rights to bind that person because they were not in occupation. The claimant could have reached agreement with Vodafone for it, as occupier, to confer rights on the claimant, and could then have asked the tribunal to impose an agreement providing for those rights to bind the respondent, but it had not done so. (3) Under para 20(3), if the relevant person did not agree to confer the Code rights on the terms proposed by the operator, the operator might apply to the tribunal for an order imposing both the rights and the terms. The reference in para 20(3)(a) and (b) to “the code right” had to be a reference to the whole of what had been proposed in the notice served under para 20(2), i.e. “the code right, and all of the terms of the agreement that the operator seeks”. If that were not the case, there would be no way of resolving a dispute over the terms of the agreement where the Code rights themselves were agreed. (4) On that basis there were two fatal objections to the present claim. First, the agreement which the claimant asked to be imposed would not confer Code rights on it because the respondent was not in a position to grant those rights. The respondent could not be made subject to an order compelling it to do that which it was unable to do. An operator could not ask a landlord to confer Code rights on it; nor could it ask any other landowner who was not in occupation to do so. The Code proceeded on the basis identified in para 9 that the recipient of the operator’s notice was in a position to confer the rights sought because they were in occupation. Where the recipient of the notice was not in occupation when the tribunal was asked to make the order, the tribunal lacked jurisdiction to do so. If the tribunal lacked jurisdiction to impose an agreement on a site owner who was not in occupation, it was not entitled to bend the rules because the third party which was in occupation might be expected to fall into line with the tribunal’s order. Vodafone was in occupation at the time the order was made and continued to assert its own rights of occupation in the county court. It was not a party to the order. Because it was in occupation, only it could confer rights by agreement under Part 2 or have them imposed on it by order under Part 4 of the Code.  Jonathan Seitler QC and Myriam Stacey (instructed by DAC Beachcroft) appeared for the claimant; Wayne Clark (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