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In the pipeline: First Supreme Court decisions on the new Electronic Communications Code expected soon

Posted on 28 January 2022

The new Electronic Communication Code (the Code) came into force in December 2017. The Code gives operators of telecommunications equipment rights to install or keep apparatus on land even if their contractual rights have been terminated. Since the Code's introduction there has been much litigation aimed at clarifying it. Two of these cases are due to be considered by the Supreme Court between 1 and 3 February.

CTIL v Compton Beauchamp Estates Ltd

CTIL v Compton Beauchamp Estates Ltd concerns the question of who may grant Code rights. The Code provides that an operator of telecommunications equipment may acquire rights by agreement with the occupier of land or by order of the Upper Tribunal.

Compton owns a field and had granted a 10-year lease to Vodafone, which allowed it to erect a telecoms mast on part of the site, and which expired in 2014. Compton served a notice to quit in 2017, but Vodafone remained in occupation. CTIL, a joint venture between Vodafone and Telefonica used to manage joint sites, sought Code rights from Compton. The Upper Tribunal held that it had no jurisdiction to impose an agreement as Vodafone was the occupier, not Compton. The Court of Appeal agreed with the Upper Tribunal.

CTIL v (1) Ashloch Ltd and (2) AP Wireless II (UK) Ltd

In CTIL v (1) Ashloch Ltd and (2) AP Wireless II (UK) Ltd, the Supreme Court will be considering both the definition of occupier and the interplay between the Code and the Landlord and Tenant Act 1954 (the 1954 Act).

Ashloch owns a building and granted a 1954 Act protected lease of part of the roof to CTIL prior to the introduction of the Code. AP Wireless has a 99-year lease of the roof, which is subject to CTIL's lease. CTIL sought a new agreement under the Code from AP Wireless. In reliance on Compton, AP Wireless argued that CTIL could not seek rights under the Code as it was already in occupation. The Upper Tribunal followed the reasoning in Compton and held it had no jurisdiction to impose a Code agreement where the operator is in occupation of the land under a 1954 Act protected lease. If the operator wanted a new agreement, it should renew its agreement pursuant to the procedure in the 1954 Act. The Court of Appeal agreed.

The Code is considered to be very operator friendly. Against this background, the above decisions were seen as major wins for landlords. Should the Supreme Court widen the definition of occupier for the purposes of the Code or allow operators who are tenants under 1954 Act protected leases to seek Code agreements, there would be far-reaching consequences for landlords and operators, and this would tip the scales further in the operators' favour.

For more information on the installation or removal of telecoms equipment on land or buildings under the Code, you can listen to our recent podcasts here.

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