Electronic Communications Code (the Code) and the Landlord and Tenant Act 1954 (the Act)

1 February, 2021

Court of Appeal decision on the case of Cornerstone Telecommunications Infrastructure Limited (CTIL) v Ashloch and APW [2021] EWCA Civ 90 CA

 

The Court of Appeal has confirmed a decision of the Upper Tribunal that an operator under the Code, CTIL (a joint venture between Vodafone and Telefonica and a leading mobile infrastructure provider) which was already in occupation of property under a tenancy agreement granted before the Code came into force in December 2017 and protected by the Act, could only seek renewal or termination under the Act, by making an application in the county court, where a different basis of valuation applies.  The Court determined that the Upper Tribunal does not have jurisdiction under the Code (Part 4) to impose new Code rights in favour of an occupying operator.  Only an occupier can confer Code rights and operators are precluded under the Code from granting Code rights to other operators.

 

The Court of Appeal also confirmed that an operator who wants to vary Code rights during the contractual term of an agreement with a site provider can only do so by reaching agreement with the site provider either to vary the existing agreement or by entering into a new agreement.  If the site provider is unwilling to agree to give modified rights, the operator is bound by the existing agreement while it remains in force.

 

Consultation Paper on changes to the Code from the Department of Culture Media and Sport

 

This decision came in the same week as the Department of Culture Media and Sport published a Consultation Paper on changes to the Code.  The Government wants to address issues that have arisen under the Code since December 2017, in particular, the reluctance of site providers to negotiate with operators for the installation of telecoms equipment, in, on or under their property.  This is an issue for owners of commercial property and also for residential blocks which are often the tallest building in the area. 

 

Currently if consensual agreement is not reached with the site provider, the operator has to apply to the Upper Tribunal for an order to impose an agreement on the site provider and to determine the terms of such agreement.  This leads to delays, meaning the Government is unlikely to meet its minimum target that by 2025, 85% of the UK will have 85% gigabit capable coverage and 95% will have 4G coverage.  The Code in its existing form already favours the operator.

 

The Government is inviting suggestions on alternative procedures to speed up this process which is quick and cost effective for the operators; rather than to benefit site providers. Responses should be submitted to the Consultation before 24 March 2021.

 

https://www.gov.uk/government/consultations/consultation-on-changes-to-the-electronic-communications-code

 

Should you like further information or advice on the Code, please contact Lesley Robinson at lesley.robinson@crippspg.co.uk.