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Lawbite: Occupiers, Occupation and the imposition of rights under the Electronic Communications Code

  • United Kingdom
  • Litigation and dispute management
  • Real estate
  • Real estate dispute resolution
  • Real estate litigation - LawBite

24-10-2019

Cornerstone Telecommunications Infrastructure Limited v Compton Beauchamp Estates Limited [2019] EWCA Civ 1755

The Court of Appeal’s judgement is the latest decision concerning the Code and the first appeal heard concerning the Electronic Communications Code.

Compton Beauchamp was the owner of the land occupied by Vodafone. Vodafone shared use of the mast with Telefonica. Cornerstone is a joint venture between Vodafone and Telefonica, set up to own and manage their combined portfolio of telecommunication sites.

The dispute in this case arose in part because of the commercial preference of Vodafone to take new agreements in the name of Cornerstone. Cornerstone sought to rely upon a provision under the Code which allows the Tribunal to impose an agreement for Code rights upon a person. This is the process set out under paragraph 20 of the Code.

The case concerned the Tribunal’s jurisdiction to impose an agreement pursuant to paragraph 20 of the Code. Cornerstone disputed the conclusion reached by the Upper Tribunal that it had no jurisdiction to impose such rights under the Code in favour of a Code operator (Cornerstone) where a third party (Vodafone) is currently occupying the land. One of the key questions for the Court was who the ‘relevant person’ was for the purposes of the Code.

Cornerstone’s appeal was dismissed after careful analysis by the Court of Appeal of the statutory framework and the interpretation of paragraph 20. It concluded that only the occupier can agree to confer Code rights, so the ‘relevant person’ in paragraph 20 must be the occupier.

Key points

  • The ‘new’ Electronic Communications Code will have been in force for two years this December. There is already a growing body of case law on the interpretation and application of the Code. The operators have been keen to test its reaches and the majority of decisions to date have favoured the operators.
  • The Court of Appeal’s guidance on the practical route forward for Cornerstone to enter into an agreement with Vodafone and then seek Compton’s agreement to be bound by it is not the speedy and seamless transition from Vodafone to Cornerstone that would have been desired.
  • The Court of Appeal also provided some guidance upon the position where an operator is already in situ and wishes to renew or vary its Code rights. The Court confirmed that the renewal of such rights is governed, principally, by Part 5 of the Code which concerns the termination or modification of agreements, rather than under paragraph 20. The impact of those comments by the Court may well lead to a greater focus by operators upon the inclusion of break clauses within new agreements in order to be able to break the term early and trigger the process set out in paragraph 33 of Part 5 of the Code to seek new/modified terms or a new agreement altogether.