The first Court of Appeal decision on the new Electronic Communications Code (Code) has recently been handed down in the case of Cornerstone Telecommunications Infrastructure Limited v. Compton Beauchamp Estates Limited [2019] EWCA Civ 1755. Both landowners and operators will find the unanimous decision helpful as it clarifies a number of key aspects of the Code.
Only occupiers can confer or be ordered to confer Code rights
The court confirmed that an application pursuant to paragraph 20 of the Code seeking an order requiring a person to confer Code rights can only be made in respect of the occupier of the land over which Code rights are sought. This mirrors the position under paragraph 9 of the Code that only occupiers can enter into voluntary agreements with operators to confer Code rights.
The Upper Tribunal had correctly analysed paragraph 20 when it explained "paragraph 20 refers to a 'relevant person' not because an agreement to confer Code rights can be imposed on someone who is not an occupier but because two different types of order may be made by the Tribunal. The relevant person will either be an occupier who is to be compelled to confer rights, or will be a person who is to be bound by rights conferred by another".
An occupier conferring Code rights does not need to have an interest in the land
An occupier conferring Code rights does not need to have an interest in the land over which the rights are granted. The court left open the possibility that even a squatter, if they qualified as an occupier, could confer Code rights on an operator. Lord Justice Lewison, while not deciding the point, commented that "it is not self-evident (to me at least) that a squatter cannot be an occupier for the purposes of the Code".
Occupation is a question of fact
The court noted that determining the meaning of "occupier" and "occupation" is "intensely sensitive to context". In the case of the Code, reference should be had to paragraph 105 which gives some explanation as to who should be treated as occupier in certain circumstances. However, it concluded that whether a person is an occupier for the purposes of the Code is a question of fact rather than legal status – it means physical presence and control of the land.
Generally there can only be one occupier of the land
Save in exceptional circumstances, there will only be one occupier of the land at any given time. In a similar way that business rates only allow for one party to be in occupation of a hereditament at any given time, the Code does not contemplate there being two or more persons being simultaneously the occupiers of the same piece of land.
An operator in situ cannot confer Code rights on itself
Where it has been determined that an operator is in fact the occupier of the relevant land, that operator cannot grant Code rights to itself. Instead, the court took the view that such an operator would need to utilise the provisions in Part 5, specifically paragraph 33 (how a party can seek to modify the terms of an agreement that has expired) of the Code to seek a renewal of the agreement. If a renewal cannot be agreed with the site provider, then that paragraph allows the operator to apply to court for an order pursuant to paragraph 34 (orders the court may make) imposing a new Code agreement on the site provider.
An operator in situ can agree to confer Code rights over the land on another operator
Where an operator is the occupier and another operator seeks Code rights over the relevant land (rather than the existing operator's equipment), the correct way of proceeding is for the operator in situ and the operator in waiting to enter into a voluntary Code agreement for the conferral of Code rights and then request that the landowner of that site agrees to be bound by that agreement. If the landowner will not voluntarily agree to be bound, the operator in waiting can then apply to the court pursuant to paragraph 20 seeking an order by which the landowner will be bound by the Code rights. The fact that the court has power pursuant to paragraph 23 to modify the agreement being sought will protect the landowner from being bound by a "sweetheart" deal struck between the two operators.
Conclusion
The decision in this case has provided some welcome clarity to both landowners and operators as to how the provisions of the Code work in practice. However, there is still plenty more of the Code left to clarify and as such we anticipate yet further litigation and judicial consideration of the Code over the forthcoming months.
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