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09 October 2020

Q&A: Responding to operator requests for Code rights

Question

I have a mobile phone operator in occupation of my site under a tenancy granted before the new Code came into force and which is continuing under section 24 of the Landlord and Tenant Act 1954 (the 1954 Act). The operator is asking me to enter a new Code agreement for a term of 10 years. Do I have to agree to this?

Answer

In short, no you do not. An agreement conferring Code rights can only be entered into with the occupier of the land and the operator is unable to serve notice requiring you to confer Code rights while it is the occupier. Instead the operator would need to go down the route of making an application for a new tenancy under the 1954 Act.

Explanation

The Electronic Communications Code, contained in Schedule 3A to the Electronic Communications Act 2003 (the Code), grants Code operators the right to install electronic apparatus on, under or over land. Usually, a Code operator will serve a notice on an occupier, who then has 28 days to confirm whether it is willing to confer the Code rights sought. If the occupier will not agree, the operator can apply to the tribunal for the rights to be imposed on the occupier, and for such rights to bind others.

In Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates [2019] EWCA Civ 1755; [2019] PLSCS 201, the court held that only the occupier of land can enter into an agreement conferring Code rights. In that case, another operator was already in occupation of the site, and so it was not possible for CTIL, as a different operator, to serve a notice on the landowner seeking Code rights.

Similarly, in Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd and another [2019] UKUT 338 (LC); [2020] EGLR 2, CTIL occupied a site under a subsisting agreement, namely a protected tenancy granted before the new Code came into force. The tribunal held that CTIL would have to follow the renewal procedure under the 1954 Act and could not choose to proceed under the Code, since it was already the occupier of the site under the subsisting agreement. Any new tenancy granted would, however, be an agreement to which the Code applies.

The operator has obtained permission to appeal the Ashloch decision.

Question

I am the owner-occupier of a building with no plans to redevelop. An operator has sought permission to access the roof of the building to enable it to carry out a multi-skilled visit (MSV) in order to assess whether or not it would be a suitable site for a new mast. Can I refuse the operator’s request?

Answer

The right to carry out an MSV is a Code right and so there are limited grounds of refusal. If you do not agree, the operator is likely to make an application to the tribunal for an order granting the right.

Explanation

Cornerstone Telecommunications Infrastructure Ltd v University of London [2019] EWCA Civ 2075; [2019] EGLR 58 confirms that the right to carry out an MSV is a Code right and the operator could serve a notice on the occupier seeking such a right. If the parties were unable to agree, the operator could apply to the tribunal for an order imposing the Code rights sought, provided that the applicable conditions in paragraph 21 were satisfied. The first condition is that any prejudice can be adequately compensated by money and the second condition is that the public benefit likely to result from the making of the order outweighs the prejudice to the relevant person.

The decision also confirms that the operator can make a freestanding application for interim rights under paragraph 27 of the Code, without needing to also apply for permanent Code rights under paragraph 20.

While interim Code rights are time-limited and do not attract security of tenure under the Code, the advantage for the operator is that it only needs to demonstrate that it has a “good arguable case” that the conditions are satisfied at a summary hearing, as opposed to proceeding to trial.

Where the operator is seeking to exercise rights which are, by their very nature, time-limited, the imposition of interim Code rights will suffice. If, following the MSV, the operator wants permanent Code rights to install apparatus, it will need to apply for them in the usual way.

In Cornerstone Telecommunications Infrastructure Ltd v Central Saint Giles General [2019] UKUT 183 (LC); [2019] PLSCS 106, the tribunal warned that parties should seek to agree reasonable terms of access for MSVs without incurring excessive costs.


This article was first published in Estates Gazette on 12 May 2020.

Camilla Lamont is a barrister at Landmark Chambers and Georgina Redsell is a senior associate at Charles Russell Speechlys LLP. For more information, please contact Georgina on +44 (0)20 7203 8897 or at georgina.redsell@crsblaw.com.

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