Once a Code lease, always a Code lease

This article refers to another case between On Tower and AP Wireless. This time, an August decision in respect of nine renewal sites.

The key aspect that we have decided to flag in this round-up is the following:

• AP Wireless sought to argue that Operators should dip in and out of protection depending upon whether they are actively running a network from the site in question, but this suggestion was cut short by the tribunal as one which they agreed would likely cause absurd or unreasonable outcomes, which would increase litigation, and which could also make it much more difficult to ensure the continuity of a reliable network.
• Resultantly, they confirmed that there is a ‘one-time’ conferrer rule for Code rights – once they have been granted, Code protection is unwavering and does not lapse just because an operator stops using a site temporarily.

The Birketts view

On Tower were seeking to renew their Code rights in this case. Their expression of a wish to do so, and, implicitly therefore, of a need to use the sites in question for the benefit of their network was sufficient to satisfy the tribunal that any right of renewal would not be scuppered by temporary non-use.

There is a provision in Paragraph 37(6) of Part 6 of the Code which theoretically gives a landowner the right to require removal of apparatus in circumstances where an operator has a Code right to keep apparatus on land, but in spite of such rights they do not use the apparatus for this purpose and there is no reasonable likelihood that the apparatus will be used for this purpose. Although this case was not concerned with Part 6, it highlights that the circumstances in which it would be possible to rely on this provision would also likely be very unusual – and the chances are that if you sought to do so, any attempt would probably be unsuccessful.