One of the main impetuses behind the new Electronic Communications Code (the “Code”), which came into force in 2017, was to make things easier for operators to put telecoms apparatus on land they don’t occupy, so as to in turn support the growth of telecommunications infrastructure across the country.
Given the main thrust behind the new regime was to aid telecoms providers in their ability to provide a reliable communications network to the public, the Code is recognised as sympathetic to such providers.
In short, under paragraph 9 of the Code, operators are allowed to seek rights to (amongst other things) install electronic communications apparatus on land from the occupier for the time being of that land.
Given the above, and the fact that the new Code supersedes the previous telecommunications legislation under which many operators were already exercising their rights, a question that has proved a hindrance to the clarity of the new Code has been – if the new Code gives operators the right to seek Code rights from occupiers of the land, what happens when the operator had already been in occupation of such land prior to the new legislation coming into force, and continues to be under an existing agreement? Are they then “occupiers” and how does this affect their rights?
The Supreme Court’s recent ruling in three joined cases, Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd, Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd, and On Tower UK Ltd (formerly known as Arqiva Services Ltd) v AP Wireless II (UK) Ltd, sought to address the question of whether the requirement for an operator to seek Code rights from occupiers of land should have the effect of fettering the operator’s ability to apply to a landowner for new Code rights when they are also currently an occupier.
The answer the Supreme Court came to was ‘no’, which in many ways is hardly surprising given the alternative would create roadblocks for operators trying to keep their technology up-to-date in order to offer an effective service to the public, which would be nonsensical in the context of, as Lady Justice Rose put it, “an industry where technology develops quickly and government policy is to encourage the rollout of new digital infrastructure across the country.” Rose LJ, added that taking the opposite stance “would impede the purpose of the new Code if operators could not apply for the new rights they need, simply because [apparatus] is already installed on the site.”
Clearly, operators would also take the view that existing agreements are no longer attractive to them in any event, given the higher rents these agreements inevitably demand and the more restrictive nature of the old telecommunications legislation. That said, the above comments in the ruling were tempered with the comforting clarification for landowners that applications for new Code rights should nonetheless only be made by operators close to the end of their old code agreements.
In summary, then, whilst operators are permitted to apply for additional Code rights under paragraph 20 of the Code in order to supplement the rights they already have under their existing agreements, if this is necessary; they will still not be allowed to apply to modify the terms of their existing agreements until the initial term of the same has already expired.
This comment allows landowners with operators who have been in situ on their land since prior to the new Code to rest assured that this welcome clarification of the common-sense approach that should be applied to the meaning of “occupier” will not cue the opening of floodgates in terms of operators rearing their heads simply to try to wriggle out of old agreements for no other reason than that their terms are less attractive to them in the context of the current legislation.
If you are a landowner or long-leaseholder of a site and have found yourselves in circumstances in which existing operators are seeking additional Code rights, or an operator has approached you for the first time and you need assistance, please contact James Robinson ([email protected]) or Danielle Eley ([email protected]) who will be happy to help.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2022.