The Upper Tribunal recently issued another decision under the new Electronic Communications Code (the “Code“) on its jurisdiction to impose an agreement pursuant to paragraph 20 of the Code – Cornerstone Telecommunications Infrastructure Limited -v- Compton Beauchamp Estates Limited [2019] UKUT 107 (LC).

In summary, the Tribunal has no jurisdiction to impose rights under the Code in favour of a Code operator where a third party is currently occupying the land.

The facts

Compton Beauchamp Estates Limited (“Compton”) is the freehold owner of farmland near Swindon. Vodafone had in 2004 been granted a ten year lease over part of the land for its telecoms mast (“the Site”). The lease expired on 25 March 2014 yet Vodafone remained in occupation of the Site pursuant to a tenancy at will.  After negotiations for a new lease broke down, Compton sought to repossess the Site from Vodafone.

On 19 June 2018, the operator in the case, Cornerstone Telecommunications Infrastructure Limited (“CTIL”), served a notice on Compton pursuant to paragraph 20 of the Code requesting Compton grant a lease which would allow CTIL to occupy the mast site and to exercise the full range of Code rights.  CTIL then made an application requesting that the Tribunal impose an agreement on Compton under the Code – that agreement to be the proposed lease.

The decision

The Tribunal decided that it did not have jurisdiction to impose a Code agreement between Compton and CTIL under paragraph 20 of the Code for two reasons:

  1. Code rights must be conferred by the occupier or, where there is nobody in occupation “the person (if any) who for the time being exercises powers of management or control over the land”.  ‘Occupation’, for the purposes of the Code, was a question of fact, rather than a matter of legal status: it means “physical presence on and control of the land”. In this case, the ‘occupier’ was clearly Vodafone. For that reason, Compton could not have complied with the paragraph 20 notice given to it by CTIL as Compton was not the occupier and could not enter into an agreement to confer Code rights without first going into occupation.  It could not do that without Vodafone’s agreement, because Vodafone’s apparatus was lawfully on the Site.  This complication could have been overcome with Vodafone’s cooperation, but the agreement which CTIL asked the Tribunal to impose made no reference to Vodafone; and
  2. The Tribunal considered that even if it was wrong about the extent of its jurisdiction, it could, at best, impose an agreement contingent on Vodafone voluntarily giving up its rights of occupation of the Site. However, Compton had not been asked to agree to a contingent right and the Tribunal decided that it could not impose an agreement on a different basis to that which CTIL had claimed and for which it had argued.

Having disposed of CTIL’s application, the Tribunal went on to consider other issues of potential significance for operators and landowners:

Public Benefit Test – The Tribunal considered whether or not CTIL’s application would have met the ‘public benefit’ test set out in paragraph 21(3) of the Code, which must be satisfied where the Tribunal is to impose an agreement.  The Tribunal concluded that CTIL would have done so, given the precarious nature of Vodafone’s rights over the Site.  However, this would not necessarily have been the case if Vodafone still had a right to possession of the Site, as provided for by the original lease.

Consideration / Compensation – The Tribunal commented on the consideration and compensation provisions in the Code. The Tribunal was clear that it would be unimpressed by valuations on the part of any party that resulted in figures that were improbably high or low. The Tribunal said that it hoped the evidence presented in future references involving rural property will focus more closely on specific transactions in relevant comparable situations.

Comment

The case demonstrates the Tribunal’s strict interpretation of the new Code and clarifies that full account needs to be taken of who is the “occupier” of the land and being requested to enter into a code agreement.  If an operator wishes to install telecoms apparatus on a piece of land, the occupier of the land must be served with the notice under paragraph 20 of the Code. The occupier could be the tenant or the freehold owner – this is a question of fact.  If CTIL had applied to the Tribunal to impose an agreement between itself, Vodafone and Compton, this could have been granted.

Therefore, if an operator wishes to bind a freeholder who is not in occupation, the operator should serve a notice under paragraph 20 on both the occupier and the freeholder and either:

(a) enter into a Code agreement with the occupier and a separate agreement with the freeholder; or

(b) create a tripartite agreement between the parties to confer Code rights.

Ben Rogers (Legal Director) & Rob Shaw (Senior Associate) 

The authors would like to acknowledge Sofia Wyzykiewicz, trainee solicitor at DLA Piper UK LLP, for her contribution to this article.