On appeals from [2019] EWCA Civ 1755, [2021] EWCA Civ 90 and [2020] UKUT 0195 (LC)
These appeals concern the grant to telecommunications operators of “code rights” enabling them to put in and function their community digital communications equipment (“ECA”) on land not owned by them. The principle difficulty is whether or not and the way an operator who has already put in ECA on a website can purchase new or higher code rights from the positioning proprietor.
Code rights are ruled by the Digital Communications Code contained in a schedule to the Communications Act 2003. Paragraph 9 of the brand new code states that “a code proper in respect of land might solely be conferred on an operator by an settlement between the occupier of the land and the operator“. Such an settlement may be made with the consent of the positioning proprietor or failing that, by an operator making use of to the Higher Tribunal (Land Chamber) for the imposition of an settlement on the positioning proprietor.
The Courtroom of Enchantment concluded that when an operator has already put in ECA on land, it can typically be each the “operator” and “occupier of the land” for the needs of Paragraph 9. As an operator can’t enter into an settlement with itself, the Courtroom of Enchantment concluded that in these circumstances an operator is included from making use of for brand new code rights.
All of the appellants are operators of cellular telecoms networks. They put in ECA on land owned by the respondents a few years in the past. A number of the operators merely stored their ECA put in on the land after the settlement expired, with out objection from the positioning proprietor. Now the operators need to enhance the safety of their place on the land by making use of for brand new code rights. The appellants argue that on the true development of Paragraph 9, an operator with ECA on land pursuant to code rights can’t be the “occupier of the land”, and subsequently that the presence of an operator’s ECA on land ought to be disregarded for the needs of Paragraph 9 in order that they will apply to the positioning proprietor or to the tribunal for brand new code rights.
The respondent website homeowners say that the telecoms operators’ skill to alter the rights they’ve solely appeared as soon as Half 5 of the brand new code applies to them. Half 5 does include provision for the renewal and modification of an current code settlement however solely as soon as the preliminary interval lined by the settlement involves an finish.
HELD – In a unanimous judgment, the Supreme Courtroom: (1) dismissed the Compton Beauchamp appeals; (2) requested additional submissions from the events in Ashloch; and (3) allowed the On Tower appeals.
the “occupier of the land“difficulty
The principle difficulty earlier than the courtroom is whether or not – in figuring out who’s the “occupier of the land” in Paragraph 9 – the phrase “occupier” consists of an operator who’s presently on the positioning on account of having put in and operated ECA there, or alternatively whether or not you will need to ignore the presence of that operator’s ECA.
The Supreme Courtroom begins from the proposition that the phrase “occupier” has no fastened that means however takes its content material from the context by which it seems and the aim of the provisions by which it’s used. Wanting on the new code as an entire, the Supreme Courtroom holds that an operator which is already a celebration to a code settlement can solely apply to the Tribunal to modify the phrases of current code rights it already has as soon as Half 5 of the brand new code turns into obtainable.
This doesn’t, nonetheless, forestall an operator on website from having the ability to acquire extra code rights in respect of the identical land. That is an trade the place know-how develops rapidly and Authorities coverage is to encourage the roll out of recent digital infrastructure throughout the entire nation. It will impede this coverage if operators couldn’t apply for the brand new rights they want for his or her community just because their ECA is already put in on the positioning. The bar on making use of for brand new rights would additionally function in an arbitrary method as a result of not each set up of ECA on a website by an operator would lead to that operator changing into the ‘occupier’ of the positioning below the check utilized by the Courtroom of Enchantment. The Supreme Courtroom additionally discovered that there are different provisions of the brand new code that are drafted on the idea that an operator can apply for brand new code rights even when they have already got ECA put in on the positioning.
Consequence of the appeals
Though the Supreme Courtroom subsequently largely accepts the operators’ arguments this doesn’t lead to all of the appeals being allowed. The Compton Beauchamp attraction is dismissed as a result of it was Vodafone which was in occupation of the positioning not the positioning proprietor Compton Beauchamp. The On Tower attraction is allowed as a result of On Tower’s occupation of the land by advantage of its ECA being put in falls to be disregarded and there may be subsequently no barrier to a code settlement being imposed below Paragraph 20.
As regards the Ashloch attraction, the distinctive characteristic on this attraction issues the truth that the tenancy initially conferring code rights below the previous code was protected by Half 2 of the Landlord and Tenant Act 1954. This provides safety of tenure to enterprise tenants and permits the tenant to use to the courtroom to resume the lease when its preliminary time period expires. The Supreme Courtroom agrees with the Higher Tribunal and Courtroom of Enchantment that the transitional provisions imply that an operator with a subsisting settlement protected below the 1954 Act doesn’t have the choice of renewing the rights below the brand new code. An operator on this place should as an alternative train its rights below Half 2 of the 1954 Act. It’s not obvious from the outline of the background information as set out within the judgments beneath whether or not the appliance made by Cornerstone lined new rights or moderately sought to resume the rights that may solely be renewed below the 1954 Act. The Supreme Courtroom subsequently invitations submissions from the events as as to whether the attraction ought to be remitted to the Higher Tribunal to contemplate this.
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