Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd and conjoined appeals

Telecommunications – Electronic Communications Code – Code rights – Appellant telecommunications operators installing electronic communications apparatus (ECA) on respondents’ land – Court of Appeal concluding operator installing ECA becoming both operator and occupier of land under Code and precluded from applying for new code rights – Appellants appealing – Whether operator barred from applying for rights under Code where already in occupation of site – Compton Beauchamp appeal dismissed – Further submissions invited in Ashloch appeal – On Tower appeal allowed In three conjoined appeals, the court was asked to determine whether and how an operator of electronic communications apparatus (ECA) who had already installed ECA on a site could acquire new or better code rights from the site owner. In Compton Beauchamp, the appellant sought code rights as an operator of telecommunications equipment on the respondent’s land. The Upper Tribunal (UT) held that, because a third party (Vodaphone) was in occupation of the land, and not the respondent, it had no jurisdiction to make an order: [2019] UKUT 107 (LC); [2019] PLSCS 65. The Court of Appeal upheld that decision: [2019] EWCA Civ 1755; [2019] PLSCS 201. In Ashloch, the appellant code operator asked the UT to impose a code agreement under para 20 of Part 4 of the Code. The UT found it had no jurisdiction to impose a code agreement as the appellant was in occupation of the land under a tenancy protected by the Landlord and Tenant Act 1954: [2020] EGLR 2. The Court of Appeal agreed: [2021] EWCA Civ 90. [2021] EGLR 14. In On Tower, the appellant code operator made a reference under the Code to the UT for orders under paras 20 and 27 of Part 4 of the Code which gave the court power to impose an agreement by which a person conferred or was bound by code rights. The UT struck out the reference on the ground that the appellant did not have code rights and the UT did not have jurisdiction to impose an agreement under para 20: [2020] UKUT 195 (LC); [2020] PLSCS 127. The appellants appealed to the Supreme Court. Held: The Compton Beauchamp appeal was dismissed. Further submissions were invited in the Ashloch appeal. The On Tower appeal was allowed (1) The main issue was whether, in determining who was the “occupier of the land” in para 9 of the Code, the word “occupier” included an operator who was presently on the site as a result of having installed and operated ECA there; or whether the presence of an operator on site should be ignored. The word “occupier” had no fixed meaning but took its content from the context in which it appeared and the purpose of the provisions in which it was used. Paragraph 105 of the Code defined the term “occupier” as the “occupier of the land for the time being”: Graysim Holdings Ltd v P & O Property Holdings Ltd [1996] AC 329; [1995] EGCS 182 applied. (2) An operator which was a party to a Part 2 agreement could only apply to the tribunal to modify the terms of the code rights conferred by that agreement once Part 5 became available. Paragraph 20 could only be used to impose additional code rights and not to impose a modification of the rights already conferred in an existing Part 2 agreement or in a code agreement to which Part 5 applied. The parties should generally be kept to their bargains and, just because an operator had second thoughts about the consideration it had agreed to pay for the grant of code rights, that did not entitle it to ask the tribunal to vary the agreement before the Part 5 rights became available, although it always had the option of negotiating a consensual variation under para 11. However, that did not prevent an operator on site from obtaining additional code rights in respect of the same land, either by agreement or by invoking the jurisdiction of the tribunal. (3) It was inherent in para 9, read in the context of the regime created by the Code, that the “operator” who sought a code right was different from “the occupier of the land”. The Code should not place such an arbitrary restriction on the ability of an operator to apply for additional code rights in relation to a site on which it had installed ECA. There was nothing in para 20 or in paras 26 or 27 that deemed the operator not to be an occupier for the purposes of its application for full rights under para 20, merely because its ECA was installed there pursuant to an interim or temporary right. If the deeming provision in paras 26 and 27 should be read as enabling the operator to jump over that obstacle too, it created an odd situation. An operator would be well advised to apply for interim or temporary rights even if it did not need them because the opportunity to apply for full rights under para 20 would then suddenly be available whereas it would not be available if the operator simply applied under para 20 when it had its ECA installed on the site. (4) The Compton Beauchamp appeal would be dismissed because Vodafone was in occupation of the site and not the respondent to which the appellant operator had applied for code rights. It was only the occupation of the operator who sought to have a new code right conferred on it which was to be disregarded. In the Ashloch appeal, the lease initially granted to Vodafone fell within Part 2 of the 1954 Act which gave it security of tenure and permitted them to apply to the court to renew the lease when its initial term expired; there was no contracting out of that protection.   Under the transitional provisions, an operator with a subsisting agreement protected under the 1954 Act did not have the option of renewing the rights under the new Code: it had to exercise its rights under Part 2 of the 1954 Act. It was not clear whether the appellant’s application covered new rights or sought to renew the rights only renewable under the 1954 Act. Therefore, submissions would be invited as to whether the appeal should be remitted to the UT to consider that point. The On Tower appeal would be allowed because the appellant’s occupation of the land by virtue of its ECA being installed fell to be disregarded and there was no barrier to a code agreement being imposed under para 20. John McGhee QC and James Tipler (instructed by Gowling WLG (UK) LLP) appeared for the appellant in Compton Beauchamp; John McGhee QC, Oliver Radley-Gardner QC, Tricia Hemans and James Tipler (instructed by Gowling WLG (UK) LLP ) appeared for the appellant in Ashloch; Jonathan Seitler QC, Justin Kitson and Kester Lees (instructed by Pinsent Masons LLP, of Birmingham) appeared for the appellant in On Tower; Christopher Pymont QC (instructed by Eversheds Sutherland (International) LLP) appeared for the respondents; Wayne Clark and Fern Schofield (instructed by Eversheds Sutherland (International) LLP) appeared for the intervener in Compton Beauchamp and for the respondents in Ashloch and On Tower. Eileen O’Grady, barrister Click here to read a transcript of Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd and conjoined appeals