Further practical clarification on the Telecoms Code

United Kingdom

The Upper Tribunal has handed down another judgment in the ongoing pursuit for clarity under the new Telecoms Code between operators and site providers. 

In the case of CTIL v Richard Gregory Keast the Upper Tribunal was asked to deal with various preliminary issues, all of which it decided in CTIL’s favour. 

The Upper Tribunal confirmed that the courts take a very strict approach to the construction of statutes that seize private property and that, if there is any ambiguity, the construction used should be the one that interferes least with property rights.  The Upper Tribunal confirmed that principle is relevant both to the construction of the Code and the exercise of the Upper Tribunal’s discretion under the Code, for example what “appropriate” terms are to be imposed alongside Code rights.

The issues for consideration were:

  • Whether the operator can claim fewer rights before the Tribunal, than claimed in the original code notice.  The Tribunal confirmed it could.  Paragraph 20 of the Code does not permit an Operator to seek wider rights than are claimed in the original notice, however it can narrow down the original scope without invalidating the notice.
  • Whether the operator was seeking rights over electronic communications equipment.  The Code does not give operators rights over other operators equipment.  The issue in this case concerned whether CTIL could be granted rights when Vodafone were already in occupation.  The Tribunal found that the prohibition concerning the acquisition of Code rights over electronic communications apparatus does not mean that it is impossible to acquire Code rights over land where that apparatus is present.  This probably will not be the end of the matter on this subject and is to be read along side last week’s decision regarding who is the occupier.
  • Whether the Tribunal had jurisdiction to confer the terms sought by CTIL. The landowner argued that CTIL were seeking a number of terms over and above the Code rights which the Court had no power to grant. The Tribunal found that it had a wide discretion as to the terms of any Code agreement.  The Tribunal would have in mind the need to be fair to both parties, and what is “appropriate” is likely to be influenced by the basis of consideration that it can impose.  Whilst finding for CTIL, it held that it should not count its chickens. 

The final point as to whether CTIL could seek the rights notwithstanding the continuation of the Vodafone lease was held to be determined on 16 April but is likely to follow last week’s decision of Cornerstone Telecommunications Infrastructure Limited v Compton Beauchamp Estates Limited (2019 UKUT0107 (LC)). Expect further decisions over the next few weeks as the Upper Tribunal deals with the volume of cases.