Another insight into the new Code

A new Electronic Communications Code 2017 came into force on 28 December 2017. It sets out the basis on which operators can install and maintain electronic communications apparatus on, over and under “land”. And its meaning is becoming clearer as landowners and operators continue to put this to the test. Cornerstone Telecommunications Infrastructure Ltd v Keast [2019] UKUT 116 (LC); [2019] PLSCS 65 concerned a telecommunications mast situated on a farm in Cornwall. Vodafone’s lease of the site had expired, but it remained in occupation thanks to the provisions of the Landlord and Tenant Act 1954. Meanwhile, Cornerstone, a joint venture company formed by Vodafone and Telefonica, served a notice asking the landowner for Code rights. In the proceedings that followed, the Upper Tribunal had to consider a number of preliminary issues. Did the rights that the company was claiming differ from the rights sought in its preliminary notice to the landowner? And, if so, did this mean that the company would have to start all over again? The company’s notice referred to the entirety of the landowner’s farm, but the draft agreement attached to it identified precise areas, comprising a few square metres, as opposed to the 60-acre farm. However, because the company’s statement of case referred to the rights set out in the same draft agreement, which was included with its application, the Upper Tribunal rejected the notion that the company was seeking rights that differed from the rights sought in its initial notice. Clearly, the tribunal could not impose rights that were not sought in an initial notice. But, if the company had sought rights in its notice, which it did not pursue before the tribunal, the judge thought it unlikely that this would have required the company to start all over again. Was the company seeking rights over “electronic communications equipment”, or over land? The answer to this question was important because the Code applies to “land” and states that “land” does not include “electronic communications apparatus”: paragraph 108. This means that operators cannot acquire “blue on blue” rights from each other using the Code. But chattels that become attached to land with a sufficient degree of permanence become part of the land. So the landowner claimed that the company was seeking rights over electronic communications apparatus that formed part of his land. However, paragraph 101 of the Code states that “ownership of property does not change merely because the property is installed on or under, or affixed, to any land”, enabling the judge to rule that apparatus installed pursuant to Code rights had not become part of the land. Furthermore, the prohibition on the acquisition of Code rights over apparatus did not prevent the company from acquiring Code rights over the land where the apparatus belonging to Vodafone was installed – and, thanks to their friendly commercial relationship, the company could acquire the apparatus itself from Vodafone. Were the rights that the company was seeking, which included positive obligations and restrictions on the landowner’s activities elsewhere, rights that the tribunal had jurisdiction to impose? The judge accepted that they were, but suggested that the operator might have an uphill struggle to persuade the tribunal to impose all the rights sought, when the case was fully heard.   Allyson Colby, property law consultant