Telecoms: First Court of Appeal decision under the New Code 

United Kingdom

The Court of Appeal has upheld the Upper Tribunal’s decision in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates [2019] UKUT 107 (LC) that the Upper Tribunal didn’t have jurisdiction to order the conferral of Code rights over land by the landowner where a third party was in occupation of that land.

Background

The operator, Cornerstone Telecommunications Infrastructure Limited (“CTIL”) sought an order conferring Code rights over a parcel of farmland (the “Land”) against the freeholder of the Land, Compton Beauchamp Estates ("CBE").

The Land was previously let to Vodafone Limited (“Vodafone”) by CBE under a lease. On expiry of the lease, Vodafone remained in occupation. In 2017, following a breakdown in negotiations for a new lease, CBE issued possession proceedings against Vodafone. Vodafone defended the proceedings, alleging they occupied the Land as a periodic tenant. As at the date of the hearing of the Upper Tribunal referral, Vodafone remained in occupation of the Land but confirmed to the Upper Tribunal that they were willing to give up their rights on completion of a new Code agreement between CTIL and CBE. CBE refused to enter into a code agreement with CTIL and so CTIL served notice on CBE under paragraph 20 of the Code for the conferral of Code rights. CTIL then made a referral to the Upper Tribunal for CBE to confer code rights. 

The Upper Tribunal rejected CTIL's referral because the Code makes clear that a code right in respect of land may only be conferred on an operator by an agreement between the occupier of the land and the operator. Vodafone was the occupier in these circumstances.

Decision

The Court of Appeal upheld the Upper Tribunal’s decision and found that its finding that whether or not a party is an occupier is “a question of fact rather than legal status” and that this “means physical presence on and control of the land” was correct.  

The Court of Appeal offered some guidance in noting that there did not appear to be any impediment to operators entering into an agreement between themselves and then seeking the landowner’s agreement to be bound by this, failing which the operator could apply to the Tribunal with a fresh paragraph 20 notice seeking to bind the landowner.

The judgment confirms that the renewal procedure (which takes place between site providers and operator occupiers in situ) remain unaffected by this decision..

Lord Justice Lewison commented that, except in very special circumstances, the Code does not contemplate two or more persons simultaneously occupying the same parcel of land. Where this is the case, the Code does not require a choice to be made between them – notice should be served on both.

Full judgement available here.

eAlert on Upper Tribunal decision available here.