Spotlight on the new Telecoms Code: the key decisions

The new Electronic Communications Code (the “Code”) came into force on 28 December 2017. Nearly eighteen months on, we have seen many claims issued under the Code, with operators and land owners looking for clarity on the new rules and wanting to test the limits. Here is a summary of the key decisions so far.

Interim rights: Cornerstone Telecommunications Infrastructure Ltd v The University of London [2018]

This was the first full decision of the Upper Tribunal on the Code. Cornerstone Telecommunications Infrastructure Limited (“CTIL”) wanted to survey the rooftop of a University of London student hall of residence, as a potential future site for a telecoms installation. The refused to allow CTIL access.

The Upper Tribunal had to consider whether:

• preliminary surveying works are a right under the Code; and
• whether interim rights can be imposed without the need for an operator to also ask for permanent rights on the premises. CTIL argued that these interim rights reflected the policy of the Code that electronic communications networks should be created quickly and cheaply.

The Upper Tribunal held that:

• The Code does give an operator a right of access to do a survey of premises for the potential installation telecoms equipment.
• Code rights can be granted contingently on the outcome of a preliminary survey. Without such a right, landowners can significantly delay operators finding new premises.
• An operator can apply for an interim right under the Code without needing to be seeking a permanent site in the same location. Interim rights under paragraph 26 are different from temporary rights under paragraph 27, which have to be parasitic on the grant of permanent Code rights.

The amount of compensation payable to a landowner: EE Ltd and Hutchison 3G UK Ltd v the London Borough of Islington

In the second Code decision, the Tribunal decided the amount of consideration and compensation payable to a landowner and looked at the form of the agreement between the parties.

This was the second visit to the Tribunal for this case. The first decision ([2018] UKUT 0361 (LC)) gave the operator a right to install its apparatus on the landowner’s building and the Tribunal gave directions for the parties to agree terms in a draft agreement.

In terms of the form of the agreement, Part 4 of the Code does not specifically refer to the agreement being in the form of a lease, but the Tribunal held that this did not prevent the Upper Tribunal from imposing a lease rather than a licence.

The landowner did not comply with the Tribunal’s directions about the form of the agreement and the Tribunal therefore ordered the terms proposed by the operator. So, the Tribunal only had to decide on the level of compensation and consideration payable by the operator under the new agreement.

How much consideration was payable?

Consideration is payable on the assumption of “no-network”, which excludes any element of value attributable to the operator’s intention to use the site as part of its network.

The operator’s expert put a nominal value on the rooftop and the Tribunal agreed, ordering that the compensation payable would be £1,000 per annum and awarding the operator’s higher submission of £2,551 per annum. The landowner’s contention for £13,500 per annum was rejected.

How much compensation was payable?

If the Tribunal orders consideration to be paid, it can also order either party to be compensated for any loss or damage sustained as a result of the exercise of the Code right.

Compensation for loss and damage can include: (a) expenses (b) diminution in value of the land and (c) costs of reinstatement. In this case, the Tribunal rejected all but 2 of the 29 heads of compensation sought by the landowner. The landowner recovered compensation for reasonable legal and surveying costs and for damage and loss flowing from the installation of the apparatus on the building.

Party with standing to grant Code rights: Cornerstone Telecommunications Infrastructure Limited v Compton Beauchamp Estates Limited [2019]

In another case involving CTIL, the landowner successfully resisted an application for the grant of Code rights over its land. The Upper Tribunal held that it did not have jurisdiction to grant the rights, as the landowner was not in occupation of the site

CTIL sought an order for Code rights over farmland which had been let to Vodafone. When Vodafone’s lease expired, they remained in occupation. In 2017, the landowner issued possession proceedings against Vodafone and Vodafone resisted possession, arguing that they occupied the land as a periodic tenant.

The landowner argued that the Upper Tribunal could not grant Code rights over the land, as it was Vodafone and not the landowner, who was in occupation. The Code does not provide for rights to be given by a landlord or landowner who is not in occupation, to an operator who is not already in occupation.

The Upper Tribunal agreed with the landowner and dismissed CTIL’s application, on the basis of two fatal flaws:

• The agreement sought by CTIL would not confer Code rights, as the landowner was not in a position to grant those rights. Where the recipient of the Code notice is not in occupation, it does not have the ability to grant Code rights over the land.
• The Code right sought would have been contingent on Vodafone giving up occupation of the land. But, Vodafone was not party to the application and not mentioned in any of the documentation. The Tribunal refused to order something that had not been argued in the hearing.

The Tribunal’s approach to interpreting the Code: CTIL v Richard Gregory Keast [2019]

Here, the Upper Tribunal confirmed that the court will take a very strict approach to interpreting statutes that seize private property and, if there is any ambiguity, they will favour the construction that interferes least with property rights.

This principle is relevant both to interpretation 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.

Enforcing removal of communications apparatus: Evolution (Shinfield) LLP v British Telecommunications plc [2019]

In this case, the Upper Tribunal confirmed that landowners cannot remove telecoms apparatus on neighbouring land, where the apparatus does not interfere with a means of access to their property at the date of installation.

BT installed a telecoms cabinet beside a footpath next to some cottages, which formed part of a development site with planning consent for more than 1,000 homes. Evolution was the freehold owner of the cottages. There was to be a new access way, connecting the development to the road, over the land on which the cabinet was situated. The cost of relocating the cabinet was estimated at nearly £300,000.

Evolution wanted an order for the cabinet to be removed, at BT’s expense, under Paragraph 38 of the Code which entitles landowners to require the removal of apparatus on neighbouring land which “interferes or obstructs a means of access” to and from their land.

The Tribunal held that a landowner cannot have a significant degree of control over the existing lawful use of neighbouring land. BT succeeded in establishing that the rights of removal under Paragraph 38 are limited to interferences or obstructions to means of access which exist at the date of installation, rather than potential means of access.

Further reading:

Law-Now on CTIL v The University of London: here

Law-Now on EE Ltd and Hutchison 3G UK Ltd v the London Borough of Islington: here

Law-Now on CTIL v Compton Beauchamp Estates Limited: here

Law-Now on CTIL v Richard Gregory Keast: here

Law-Now on Evolution (Shinfield) LLP v British Telecommunications plc: here