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Happy Birthday to the ECC: Part 2: What we know after 2 years

  • United Kingdom
  • Other

11-12-2019

The Electronic Communications Code will be 2 years old on 28 December 2019.  So what do we know in light of the first cases?

Conferral of Code Rights

  • Paragraph 9 of the Code is clear, only an occupier can confer Code rights.

The Court of Appeal in Cornerstone Telecommunications Infrastructure Limited –v- Compton Beauchamp Estates Limited [2019] EWCA Civ 1755 upheld the Upper Tribunal’s decision in  [2019] UKUT 107 (LC), that the only person who can confer Code rights on a Code operator is the occupier of the land in accordance with paragraph 9 of the Code.

The Upper Tribunal does not therefore have jurisdiction to hear an application under paragraph 20 of the Code to impose an agreement for the conferral of Code rights on a  landowner where the operator itself, or a third party, is already in situ.  The Tribunal would have jurisdiction to hear a paragraph 20 application to bind a landowner not in occupation.

1954 Act and the Code does not have retrospective effect

  • An existing agreement protected by the 1954 Act should be renewed and/or terminated in accordance with the 1954 Act.
  • The Code does not apply retrospectively to existing contractual arrangements.

In the landmark case for landowners of Cornerstone Telecommunications Infrastructure Limited v (1) Ashloch Limited (2) AP Wireless II (UK) Limited [2019] UKUT 0338 (LC), in which we acted for the successful landowner, the Upper Tribunal confirmed that it has no jurisdiction to hear a paragraph 20 application to confer rights where the landowner was not in occupation.  It further determined that, in relation to a lease protected by the security of tenure provisions in Part II of the Landlord and Tenant Act 1954 (1954 Act), the parties must follow the procedures set out in the 1954 Act and not the Code and it has no jurisdiction in such circumstances. 

 

An operator occupying under an existing 1954 Act lease must apply to the County Court if it wants a renewal lease.  Once completed, the renewal lease will be a Code agreement and will no longer have the security of tenure afforded under the 1954 Act.

The Upper Tribunal acknowledged that the Code is not to have retrospective effect.

Redevelopment under the Code

  • A similar ‘redevelopment’ test is to be applied under the Code as under the 1954 Act.

The first case before the Upper Tribunal dealing with redevelopment under the new Electronic Communications Code and the test which is to be applied was: EE Limited and Hutchison 3G UK Limited –v- The Trustees of the Meyrick 1968 Combined Trust of Meyrick Estate Management [2019] UKUT 0164 (LC) in which our London telecoms team acted.

This precedent setting case determined that the test applied by the Supreme Court in S Franses Limited (Appellant) v The Cavendish Hotel (London) Ltd (Respondent) [2018] UKSC 62 also applies to cases under the Code; and a similar threshold test is to be applied when considering redevelopment under the Code as that in opposed lease renewal proceedings on ground 30(1)(f) of the 1954 Act.

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