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Some clarity regarding subsisting agreement and the Electronic Communications Code

Site providers and operators have endured periods of uncertainty, but now that uncertainty has been removed by the Supreme Court.

Since the decisions in CTIL v Compton Beauchamp Estates Ltd, CTIL v (1) Ashloch Ltd and (2) AP Wireless II (UK) Ltd and On Tower UK Ltd (formerly known as Arqiva Services Ltd) v AP Wireless II (UK) Ltd, site providers and operators have endured a period of uncertainty, pending the operators’ appeals of the lower courts’ decisions in those cases. That uncertainty has now been been removed by the Supreme Court.

The key issue for the Supreme Court to decide was whether the transitional provisions under the revised Electronic Communications Code (‘the Code’) allowed operators to acquire new or better rights under the Code during or after the term of its agreement, where the operator had already installed its equipment on site. The Supreme Court considered the definition of ‘occupier’ as well as considering how the Code was intended to work in practice in several other procedural ways.

The Court determined that an operator in situ who applies for new Code rights is not to be regarded as the occupier of the site for the purpose of the Code and can therefore apply for new Code rights. The decision does not extend to enabling operators to apply for a modification of the rights already conferred upon them by an existing agreement.

Considering the various procedural issues in question in these cases, and taking each appeal in turn, the court determined:

In Compton Beauchamp the court could not excuse CTIL’s error in making an application for rights on behalf of Vodafone. Vodafone were in occupation and ought to have applied to the landowner directly.

In Ashloch the court upheld the decisions of the lower courts and confirmed that, on the facts of that case, a Landlord and Tenant Act 1954 renewal was the operator’s recourse, not an application for a new agreement under the Code.

In On Tower, given the court had now clarified the position regarding an operator in situ, and the right to apply for new rights, it mattered not whether the tenancy at will was subsisting or not. On Tower were free to request new Code rights.

The decision of the Supreme Court is another indication of the courts’ general approach to interpreting the Code in a manner which generally favours the operators. Parliament’s stated intention was to ensure the country as a whole benefits from a fast and reliable electronic communications system and the courts appear prepared to interpret the Code in such a manner to give effect to that intention. However, that is not to say that the courts will disregard the landowners’ interests, or ignore the operators’ procedural breaches of the Code. Each case turns on its own facts and landowners would be well advised to seek professional advice in every instance they are faced with an operator’s request under the Code.

For further information or to get expert advice, contact our team of landlord and tenant solicitors