Who Has The Right To Apply For Code Rights Under The New Telecommunications Code?

The Electronic Communications Code 2017 ("the New Code") has caused a flurry of litigation as landowners, telecoms providers and also the courts come to grapple with the questions of how the New Code operates in practice.

One such provider is Cornerstone Telecommunications Infrastructure Limited, which features in two very recent cases on the New Code.

The first case, Cornerstone v Compton Beauchamp Estates Limited [2019] considered the question of whom telecoms operators should approach in order to gain new rights over land which they are looking to use for the first time.

Background

Vodafone had a lease of a site owned by Compton for a period of 10 years. The site was on the edge of farm land, near the railway, and a 15 meter mast, and associated equipment, was placed upon it.

Vodafone's lease came to an end, but its equipment remained on the site, pursuant to the terms of the previous telecoms regime. Cornerstone (which is a joint venture between Vodafone and Telefonica) wished to install equipment on the land and obtain rights under the New Code to do so. Accordingly, it served notice on Compton under paragraph 20 of the New Code seeking code rights to be granted to it.

Compton objected, on the basis that, even though it was the land owner, it had no obligation to grant code rights under paragraph 20 of the New Code. The case went to the tribunal.

First Decision

The Upper Tribunal decided that Cornerstone had got it wrong. Rights under the New Code can only be conferred by an agreement between the "occupier" of land and an operator (see paragraph 9 of the New Code).

Compton, although it was the landowner, was not the "occupier" of the land - Vodafone was.

Accordingly, if Cornerstone wanted to obtain rights under the New Code it should have reached an agreement with Vodafone and then asked Compton to be bound by that agreement. If Compton refused, Cornerstone could then have made an application to the tribunal under paragraph 20 of the New Code to bind Compton to the rights that had been agreed between Cornerstone and Vodafone as "occupier".

The appeal

Cornerstone, not liking this outcome, took the case to the Court of Appeal. Unfortunately for Cornerstone, the Court of Appeal agreed entirely with the analysis of the Upper Tribunal.

These were the key points made the in the judgment:

The New Code is clear that code rights can only be conferred by the "occupier". The landowner (if different) can either agree to be bound by those rights...

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