Code rights must be agreed with, or imposed on, occupiers

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 is still in its infancy. Consequently, we are starting to see vigorously contested cases, exploring its meaning and effect. Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] UKUT 107 (LC); [2019] PLSCS 65 concerned a telecommunications mast standing on a concrete base in a fenced compound. The mast and the apparatus on it were placed there by Vodafone, pursuant to a lease that was contracted out of the Landlord and Tenant Act 1954, which had now expired. Vodafone (which shared the use of the mast with Telefonica) remained in occupation as a tenant at will until the landowner served a notice terminating that arrangement too, together with a notice under paragraph 21 of the old Code requiring Vodafone to remove its apparatus. Vodafone then served a counternotice under paragraph 21(4) of the old Code preventing the removal of the mast without an order of the court. Meanwhile, Cornerstone, a joint venture company formed by Vodafone and Telefonica, served a notice on the landowner requiring it to confer Code rights on the company. Consequently, the Upper Tribunal had to decide whether it had jurisdiction to confer Code rights on the company, given that Vodafone already occupied the site. Operators can acquire Code rights in two different ways. They can be conferred by an agreement between “the occupier of the land and the operator” under paragraph 9. Alternatively, the tribunal can impose an agreement on the parties under paragraph 20. However, paragraph 20 uses the expression “the relevant person” (instead of “the occupier”) to identify the person on whom a Code agreement can be imposed. The company argued that the “relevant person” includes anyone required to confer Code rights on an operator, and not just the occupier. But the tribunal decided that it was obvious, from the nature of Code rights themselves (which authorise an operator to do things that are likely to interfere significantly with the ability of anyone else to use the land), why such rights must be conferred by the occupier. 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. Therefore, the tribunal did not have the jurisdiction to impose an agreement on the landowner pursuant to paragraph 20 of the Code. Vodafone was in occupation and it was the only person who could confer rights by agreement, or have them imposed on it by an order of the tribunal. This was an extreme case because Vodafone’s rights were precarious and there was reason to believe it would allow the company to take occupation of the site. But nothing in the Code differentiated between third parties in occupation who were well-disposed, or hostile, to the imposition of rights and the tribunal could not bend the rules simply because a third party in occupation could be expected to fall into line with its order. The way around the problem was for the company to reach an agreement with Vodafone for it, as the occupier, to confer rights on the company, and then to ask the tribunal to impose an agreement providing for those rights to bind the landowner.   Allyson Colby, property law consultant