Two Out of Three Ain't Bad: Supreme Court gives judgment in Telecoms Cases

The Supreme Court has today given judgment in cases involving issues in the Electronic Communications Code. The Code applies right across the UK and whilst each jurisdiction has interpreted parts of the Code in different ways, these decisions of the highest court in England & Wales are of importance right across the industry.

Case Details and the Issues

The facts in CTIL v Compton Beauchamp Estates Ltd are that the operator (here being a joint venture between Vodafone Ltd and Telefonica UK Ltd) own a telecoms mast on the edge of a field with a 10-year lease to that site, granting Vodafone the right to install and use the mast. Telefonica also use the mast.

Vodafone's lease expired in 2014, and it was served with a notice to quit in 2017. The Code says that an operator of telecoms equipment may acquire certain rights under the Code by agreement or by order of the Upper Tribunal (UT). Cornerstone sought code rights from the site provider. The UT said that, because Cornerstone was not in occupation of the land (Vodafone was), the UT had no jurisdiction to make an order. In essence, if another operator was in occupation, then that operator was the relevant “occupier” for conferral purposes under the Code.

The Court of Appeal upheld the UT's ruling that it lacked jurisdiction to impose an agreement on a landowner under Pt 4 of the Code where the landowner was not in occupation of the relevant site.

In On Tower UK Ltd (formerly known as Arqiva Services Ltd) v AP Wireless II (UK) Ltd a 20-year telecoms lease over a site at Queens Oak Farm, Towcester had expired in October 2016. Prior to lease-expiry, the operator had rights under the statutory predecessor to the Code. After the expiry of the lease, the operator remained in occupation of the site.

In July 2019, the operator gave the site provider notices seeking orders under paragraphs 20 and 27 of Part 4 of the Code (which gives the court power to impose an agreement by which a person confers or is bound by Code rights).

The matter was referred to the UT in August 2019, where it struck out the case finding that the operator did not have subsisting Code rights without a written tenancy in place; and the UT did not have jurisdiction to impose an agreement under para 20 of the Code.

CTIL v Ashloch Ltd and another is a case important to those dealing with telecoms agreements and disputes in England & Wales. It involves a site called Windsor House where the operator has a tenancy on part of the roof of Windsor House for the purposes of providing telecommunications services.

The operator's tenancy pre-dates the entry into force of the Code and is protected by the Landlord and Tenant Act 1954 (LTA 1954). The operator asked the UT to impose an agreement under para 20, Part 4 of the Code (a Code agreement). The site provider argued that Part 4 of the Code is not available to the operator as the occupier of the site.

The UT had found it had no jurisdiction to impose a Code agreement where an operator is in occupation of the land under a tenancy protected by the LTA 1954. The Court of Appeal had dismissed the operator’s appeal.

Supreme Court Decisions

Judgment in the cases was handed down this morning and can be accessed here.

CTIL v Compton Beauchamp – although generally the Supreme Court largely accepted the operator arguments, CTIL's appeal was dismissed. The Supreme Court holding that Compton Beauchamp was not the occupier of the site to which CTIL's application related and so was not the appropriate recipient of CTIL's notice under para. 20(1)(a) of the new Code.

On Tower v AP Wireless - in asking what is the meaning and effect of paras. 20 and 27 of the Code as set out in Schedule 3A to the Communications Act 2003, drawing a distinction from Compton Beauchamp in the meaning of occupation falling to be disregarded, the appeal was allowed.

CTIL v Ashloch – The Supreme Court found the reasoning in the UT and Court of Appeal decisions – as to why an operator with a subsisting agreement protected under the LTA 1954 Act should not have the option of renewing the rights under Part 4 of the new Code – persuasive. The Supreme Court is however seeking further submissions from the parties saying it was unclear what rights CTIL was seeking. This case may be referred back to the UT for further determination.

Lots more to pore over in the judgments and the potential for further referral in CTIL v Ashloch, and we will update further. For now, though, as Meat Loaf once sang, two out of three ain't bad.

Our Sector Expertise

Brodies has a long track record in the telecommunications industry, supporting operators in relation to their infrastructure requirements right across the UK, as well as institutional landowners.

Our sector expertise with specialist lawyers qualified in all relevant jurisdictions means that we regularly advise on issues involving the old regime and issues in transitioning to the new Code, dealing with telecoms agreements, easements and necessary rights over land, wayleaves for fibre optic cables and associated compensation claims, renewals and terminations, acquiring Code rights, disputes, Land Tribunal actions and judicial reviews.

If you have telecoms infrastructure requirements across the UK, have any concerns or questions about the Electronic Communications Code or how these decisions may impact you or your business, please do not hesitate to get in touch with our Real Estate Disputes Team or your usual Brodies' contact.