23rd June 2022: Supreme Court Gives Decisions in Code Appeals

SUPREME COURT GIVES DECISIONS IN CODE APPEALS

The Supreme Court heard appeals in three cases under the Electronic Communications Code in early February:

• Compton Beauchamp - Cornerstone Telecommunications Infrastructure Ltd (Appellant) v Compton Beauchamp Estates Ltd (Respondent)
• Ashloch - Cornerstone Telecommunications Infrastructure Ltd (Appellant) v Ashloch Ltd and AP Wireless II (UK) Ltd (Respondents)
• “Queens Oak”/ On Tower - On Tower UK Ltd (formerly known as Arqiva Services Ltd) (Appellant) v AP Wireless II (UK) Ltd (Respondent)

Yesterday, it issued its judgments in all three. This note gives an immediate initial report with a more detailed review to come later.

The Court:

• - dismissed the operator’s appeal in Compton Beauchamp appeal
• - asked for further submissions from the parties in Ashloch
• - allowed the operator’s appeal in On Tower.

The main issue for the court was whether the “occupier of the land” able to give a Code agreement includes an operator already on the site having installed and operated electronic communications apparatus there or whether that operator’s apparatus should be ignored.

As in other decisions, the meaning of “occupier” has to be taken in its context and in the light of the purpose of the provisions in which it is used.

Taking “the new code as a whole, the Supreme Court holds that an operator which is already a party to a code agreement can only apply to the Tribunal to modify the terms of existing code rights it already has once Part 5 of the new code becomes available. This is because parties should generally be kept to their bargains although they can seek a consensual variation under paragraph 11 of the new code.

However, an operator on site can apply to the Tribunal to obtain additional code rights from the site provider in respect of the land, even though it has existing apparatus on the land.

The Compton Beauchamp appeal is dismissed because it was Vodafone which was in occupation of the site, not the site owner (Compton Beauchamp Estates).

However “The Supreme Court does not hold that all occupation of any operator with ECA installed on the site falls to be disregarded. It is only the occupation of the operator who seeks to have a new code right conferred on it which is disregarded.

Tus, it allowed the On Tower (“Queens Oak”) appeal is allowed because On Tower’s occupation of the land by virtue of its ECA being installed falls to be disregarded and there is therefore no barrier to a code agreement being imposed under Paragraph 20.”

For Ashloch appeal, the distinctive feature was that the tenancy initially conferring code rights under the old Code was protected by Part 2 of the Landlord and Tenant Act 1954. That enabled the operator tenant to apply to the court to renew the lease when its initial term expires. The Supreme Court agreed with the Upper Tribunal and Court of Appeal that an operator with a subsisting agreement protected under the 1954 Act does not have the option of renewing the rights under the new Code. An operator in this position must instead exercise its rights under Part 2 of the 1954 Act.

However and in keeping with diction just made between existing and new rights, Court was not clear from submissions whether Cornerstone’s application was for new rights or if it sought to renew the rights that can only be renewed under the 1954 Act. The Supreme Court asked the parties to clarify this so that the Upper Tribunal could then decide the outcome of that case.

The full decision covering the three cases can be seen on reference [2022] UKSC 18.

< > < > < >